*w 


THE  ARGUMENT 

.       I  i  .       ST  A  N  1)  IS  I  I 

BEFORE    CONGRESS, 

EXPLAINING 

Tin1  J>c(t  1 1  hi  en    Til  If  in   lite    Lake    Front    L<ui.<lx 
nl  Chicago,  in  Section,  10, 

WITH    REASONS 

Why  They  Should  be  Granted  to  the  Beaubiens 
by  Congress, 

And  not  Donated  to  Chicago, 
II '////    JppemU.v    C<>n1<iiniiii> 


WASHINGTON,   I- 

N .    \V . 


The  Argument  of  WM.  H.  STANDISH  before  Congress,  explain- 
ing the  BEAUBIEN  title  in  the  Lake  Front  Lands  at  Chicago,  in 
section  10,  with  reasons  why  they  should  be  granted  to  the 
BEAUBIENS  by  Congress,  and  not  donated  to  Chicago. 


This  land,  being  described  in  Senate  bill  773,  and  the 
same  land  described  in  Representative  Harrison's  Lake 
Front  bill  in  the  House,  was  ceded  by  the  Indians,  August 
3,  1795,  at  the  treaty  of  Greenville.  It  was  not  entered  as 
a  reservation  until  1824,  and  from  August,  1812,  to  July, 
1816,  was  not  a  post  of  any  kind,  and  had  no  buildings  on 
of  the  Government,  or  soldiers  or  agents  of  the  Govern- 
ment in  possession ;  hence,  between  these  last  dates  the  land 
was  vacant  and  unappropriated,  and  susceptible  of  passing 
in  equity  under  the  pre-emption  and  other  land  laws  out  of 
the  United  States. 

1st  Attorney  Generals  Opinions,  292. 

6th  McLean,  517,  U.  S.  vs.  R.  R.  Bridge  Co. 

15th  Peters,  407,  U.  S.  vs.  Fitzgerald. 

To  explain :  when  troops  stop  and  camp  on  public  land, 
without  having  it  entered  in  the  Land  Office,  it  remains  ap- 
propriated until  they  pass  on,  whether  their  stay  is  long  or 
short.  After  it  has  been  entered  as  reserved  in  the  Land 
Office,  they  must  not  only  move  on,  but  the  entry  made 
must  be  canceled;  both  these  things  then  need  to  concur, 
when  the  land  falls  back  into  its  original  condition,  con- 
trolled by  the  general  land  laws  for  disposition. 

Second.  Between  these  dates  two  pre-emption  laws  were 
passed,  by  which  all  of  the  equitable  title  during  that  time 
did  pass  out  of  the  United  States  and  become  vested  in  Jean 
B.  Beaubien,  the  father  of  these  claimants. 

The  first  of  these  acts  was  made  February  15,  1813.  (2 
vol.  Stat,  797.) 


An  amendment  to  this  law  was  made  April  29, 1816.  (3d 
vol.  Stat.,  page  554.) 

Third.  The  following  affidavits  show  that  Beaubien  had 
done  more  than  to  have  purchased  an  early  settlement  claim 
on  this  land,  and  not  to  have  removed  from  the  then  Illinois. 
Territory,  which  was  all  that  was  required  by  this  law  to  be 
a  vested,  equitable  owner  of  the  land.  The  affidavits  re- 
ferred to  are  those  of  Colonel  E.  D.  Taylor,  who  is  certified 
to  by  Representative  Morrison,  of  that  State;  Madore  B. 
Beaubien,  who  is  certified  to  by  Representative  Ryan,  of 
Topeka,  Kansas;  also,  those  of  John  B.  Letendre,  David 
McKee,  Mr.  LeVassar,  all  credible  persons. 

The  evident  reason  why  continued  residence  on  the  land 
was  not  made  necessary  by  this  law,  or  something  near  con- 
tinued residence  on  it,  was  because  this  law  was  passed  when 
we  were  at  war,  and  having  much  trouble  with  the  Indians 
of  Illinois  Territory,  and  it  could  not  be  clearly  foreseen 
what  the  exigencies  of  the  settlers  of  that  territory  might  be. 
It  was  deemed  prudent  to  give  them  and  their  families  lib- 
erty to  live  where  they  might  deem  it  most  expedient  and 
safe  until  their  lands  should  come  into  market,  and  so  this 
law  was  made  accordingly. 

In  the  case  of  Bird  vs.  Cravens  et  al.,  1st  Mo.,  282,  the 
purchaser  of  one  of  these  unentered  rights  left  the  land;  his 
whereabouts  was  unknown,  and  the  person  he  had  purchased 
it  from  entered  the  tract  in  his  own  name,  and  got  the  patent 
title,  and  was  held  a  trustee  of  it  for  the  absent  settler  he 
had  previously  sold  his  unentered  right  to. 

The  act  of  April  29, 1816,  also  authorized  a  settler  before 
survey  to  take  any  uninclosed  unappropriated  land,  in  any 
fractional  quarter  section  in  and  around  his  buildings  and 
improvements  he  might  then  have  on  the  land,  and  to  au- 
thorize the  register  and  receiver  to  so  divide  the  land  when 
it  would  come  by  him  to  be  entered  at  the  Land  Office. 

None  of  the  land  south  of  Randolph  street,  in  this  tract, 
which  is  this  land,  was  reserved,  or  in  the  use  of  the  post, 
prior  to  October  1,  1824,  and  this  was  true  of  nearly  all  the 


3 

land  in  this  fractional  quarter  section.  The  Government 
field  spoken  of  in  the  Wolcott  letter,  in  13th  Peters,  498, 
was  not  in  this  fractional  quarter  section,  but  west  of  State 
street,  in  section  nine.  (See  affidavit  of  Madore  B.  Beau- 
bien.) 

These  laws  were  not  limited  in  the  time  they  should  last, 
like  the  1830,  1834,  and  1838  laws.  They  were  to  stand 
until  repealed.  They  have  never  been  repealed.  They  were 
not  affected  by  the  law  of  1841,  and  are  no  part  of  that  act. 
That  act  and  these  acts  apply  to  different  cases — that  act  to 
later  settlements,  and  to  settlements  now  taking  place  and 
likely  to  take  place  hereafter.  That  act  was  not  made  to 
affect  settlement  rights  that  had  become  vested,  and  would 
have  been  void  to  the  extent  it  would  have  attempted  to  do 
this.  Therefore,  the  nature  of  this  right  has  got  to  be  con- 
sidered solely  by  these  early  laws  alone. 

"Was  it  in  the  power  of  Congress  in  1813  and  1816  to  pass 
a  law  that,  before  entry  at  the  Land  Office,  would  invest  a 
settler  on  public  lands,  or  his  assignee,  with  a  vested  inter- 
est in  them  ? 

It  was,  because  the  Constitution  had  invested  it  with  sole 
and  unlimited  power  on  the  subject. 

It  could  bind  the  Government  by  a  conveyance  outright, 
or  by  a  proposition  to  convey  in  the  future  to  become  bind- 
ing, when  any  steps  in  it  provided  for  acceptance  should  be 
commenced  to  be  performed,  and  by  which  the  Government 
might  from  that  date  stand  concluded  until  a  default  should 
be  made  by  the  settler,  the  same  as  if  the  proposition  had 
been  from  the  fee  owner  of  wild  land  to  induce  some  one 
to  improve  it. 

What  is  a  vested,  equitable  interest  in  land  ?  It  is  an  in- 
terest which  the  law  protects,  and  authorizes  the  owner  to 
transfer  to  another,  and  invest  the  purchaser  with  all  the 
rights  in  it,  which  before  sale  the  settler  had. 

Did  these  laws  of  1813  and  1816  place  such  an  interest  in 
the  settler  before  the  entry  of  his  land  at  the  Land  Office  ? 

They  did,  because  they  protected  him  from  the  date  of  his 


settlement  until  all  the  time  given  for  entry  should  expire; 
and,  before  entry,  authorized  the  settler  to  sell  and  transfer 
all  his  right  and  interest,  and  place  the  purchaser  in  his 
shoes. 

The  law  contained  no  clause  against  assignment  or  trans- 
fer before  entry,  but  ran  to  the  settler  or  his  representative, 
and  such  a  clause  in  the  case  of  Sawyer  vs.  Pritchett  and 
wife,  19th  Wallace,  153,  was  held  to  make  the  word  repre- 
sentative mean  a  purchaser  instead  of  an  heir,  where  there 
had  been  a  sale;  while  in  the  cases  of  Hughes  vs.  The  Uni- 
ted States,  4th  Wallace,  232,  and  Bird  vs.  Cravens,  1st  Mo., 
282,  in  each  case  it  was  distinctly  held  that  a  sale  of  one  of 
these  settlement  rights  before  entry  invested  the  purchaser 
with  all  the  rights  of  the  original  settler — all  the  original 
settler  would  have  had  had  he  not  sold,  but  entered  the  land 
himself.  These  two  last  cases  arising  under  this  identical 
law. 

These  were  the  only  pre-emption  laws  in  force,  as  before 
stated,  in  Illinois  Territory  prior  to  1830.  Mr.  Scott  and 
Mrs.  Clyborne  went  to  Chicago  in  1826,  and  Mr.  LeVassar 
to  Illinois  Territory,  further  south,  as  early  as  1817.  Each 
of  these  witnesses  swear  that  prior  to  1830,  from  the  date 
they  first  went  to  Illinois,  these  rights  were  sold  and  trans- 
ferred before  entry,  for  value  paid,  like  horses  or  cows, 
and  were  regarded  as  much  the  private  property  of  the  set- 
tler as  a  patent  title  now  is,  and  that  it  was  understood  that 
when  the  land  should  come  into  the  market  that  the  laws  of 
the  United  States  would  give  them  the  sole  and  exclusive 
right  to  enter  and  buy  their  tract;  and  Mr.  Scott  swears 
these  rights  sometimes  would  bring  several  times  as  much 
as  would  afterwards  have  to  be  paid  the  Government  for 
the  land.  They  were,  in  fact,  as  strong  an  equitable  title 
until  default  should  be  made,  as  a  located  military  land  war- 
rant before  patent. 

How  long  was  this  equitable  title  to  last  without  entry  at 
the  land  office  ?  Until  within  two  weeks  of  the  time  that 
the  tract  could  be  sold  at  public  sale. 


What  is  necessary  to  do  before  any  tract  of  land  can  be 
sold  at  public  sale  ?  It  must  have  been  by  the  President 
proclaimed  for  sale  through  the  Land  Department. 

When  was  this  tract  of  land  proclaimed  for  public  sale  ? 
Never.  (See  statement  of  case  of  General  Land  Office.  Such 
is  the  fact.  The  suit  hereafter  referred  to,  shows  it  was  not 
included  in  proclamation  of  1835.) 

Then  this  equitable  title  is  still  in  full  force,  and  the  time 
to  obtain  the  legal  title  at  $1.25  per  acre,  as  to  any  land  the 
Government  still  retains  the  legal  right  to,  still  exists.  That 
is  the  case.  It  could  not  be  since,  as  it  has  not  since  been 
certified  back  to  the  Land  Department,  through  which  de- 
partment the  proclamation  would  have  to  come. 

Why  don't  you  go  there  and  get  your  title,  and  not  bother 
Congress  ?  Because  the  land  has  been  taken  out  of  the 
Land  Department  by  being  reserved  for  military  purposes, 
and  that  is  the  only  department  that,  by  law  was  invested, 
or  is  now  invested,  with  jurisdiction  to  hear  pre-emption 
proofs  and  grant  pre-emption  certificates  of  purchase,  and  it 
has  not  been  placed  back  in  that  department  to  be  disposed 
of;  therefore  it  has  no  jurisdiction  to  sell  the  land  now,  and 
a  sale  to  us  now  by  that  department,  and  even  after  patent, 
would  leave  us  just  where  we  are  now.  It  would  be  void, 
like  the  sale  of  1835. 

As  a  matter  of  precaution  we  shall  file  our  proofs  there 
before  the  late  case  there  goes  up,  but  shall  fear  a  title  al- 
lowed by  that  department  for  this  reason :  If  this  is  a  reserva- 
tion it  cannot  be  vacated  now  by  the  Land  Department  mak- 
ing a  cancellation  or  setting  aside  of  the  record  making  the 
reservation  in  1824,  for  the  reason,  that  all  power  to  do  that 
in  the  Land  Department,  and  invest  that  department  with 
jurisdiction  to  sell,  has  not  resided  in  the  Land  Department 
as  respects  military  reservations  since  March  3,  1857.  We 
believe  Commissioner  Williamson  was,  however,  honest  in 
his  decision,  and  with  his  views,  and  what  was  before  him, 
did  the  only  thing  he  could  consistently. 

The  proof  of  compliance  l>y  said  Beaubien  with  the  terms 


6 

•of  these  two  early  laws  is  this  Col.  E.  D.  Taylor,  who  is  gen- 
erally known  throughout  Illinois  most  favorably,  testifies  that 
he  was  the  receiver  of  the  first  land  office  established  at  Chi- 
cago, this  being  opened  in  May,  1835,  and  that  when  it  opened 
the  said  Jean  B.  Beaubien  brought  his  old  friends  and 
neighbors,  who  with  him  offered  to  swear  he  purchased  a 
house  on  this  land  in  1812,  a  house  that  had  been  occupied 
since  an  earlier  date  than  1812,  and  a  piece  of  ground  that 
had  been  cultivated  in  connection  with  it  prior  to  that  date 
by  the  owner  and  occupant,  and  that  it  had  been  his  house 
since  1812,  and  that  from  that  day,  at  different  times,  which 
were  in  1817  and  1823,  he  had  purchased  valuable  buildings 
on  said  land  that  he  then  still  owned,  and  that  both  said 
register  and  receiver  were  thoroughly  satisfied  that  at  that 
time,  that  Beaubien  had  complied  with  all  the  requirements 
of  these  early  laws  of  1813  and  April  29,  1816,  but  not  hav- 
ing any  blanks,  for  those  laws  for  either  the  taking  of  proofs 
or  the  issuing  certificates,  and  having  blanks  for  the  1834 
law,  which  latter  blanks  had  been  furnished  from  Wash- 
ington, these  being  in  fact  in  rotation  like  checks  in  a 
check  book,  with  ends  to  each,  they  used  these,  supposing 
that  it  would  make  no  difference;  and  that  if  any  fault  is 
imputable  to  any  one  that  the  proofs  offered  under  the  1813 
law  were  not  taken  and  a  receipt  given  under  that  law,  it 
is  imputable  to  the  United  States  and  its  agents,  and  not  to 
Beaubien,  as  he  did  every  thing  in  that  respect  that  could 
be  done. 

John  B.  Letendre  is  now  84  years  of  age  nearly,  and  well 
preserved.  He  is  well  vouched  for  as  a  credible  person.  He 
testifies  that  in  1815  he  was  21  years  of  age,  and  worked  for 
said  Beaubien,  and  boarded  in  said  Beaubien's  family  in 
the  year  1815,  on  this  land,  at  which  time  there  was  no  build- 
ing of  the  Government  on  this  land,  these  having  been 
reduced  to  ashes;  and  that  during  1815  said  Beaubien  culti- 
vated a  piece  of  ground  on  this  tract  of  land,  and  no  agent 
of  the  Government  was  then  on  it.  Letendre  did  not  leave 
Chicago  until  1836,  or  later,  and  much  of  the  time  worked 


for  Beaubien,  and  states  that  up  to  this  time  this  land  had 
remained  Beaubien's  home.  He  also  states  that  at  that  time, 
in  1815,  he  learned  by  common  report  that  Beaubien  had 
then  owned  that  settlement  claim  for  three  years,  since  in 
1812. 

David  McKee  testifies,  that  he  went  to  Chicago  in  1822, 
and  that  at  that  time,  that  an  old  house  such  as  has  been 
described,  stood  on  said  land,  then  in  use  as  a  stable;  that 
this  old  house  then  in  use  as  a  stable  had,  from  its  appear- 
ance, evidently  stood  there  for  thirteen  or  fifteen  years  or 
more. 

Madore  B.  Beaubien  cannot  recollect  back  further  than 
the  spring  of  1813,  when  he  was  about  four  years  old,  hav- 
ing been  born  in  July,  1809. 

He  testifies  that  at  that  time  his  father  had  a  home  on  this 
land  and  used  to  visit  it  yearly,  spending  a  small  portion  of 
each  year  on  it,  and  the  balance  of  his  time  he  was  on  his 
"business  at  Milwaukee  and  Green  Bay,  all  then  in  Illinois 
Territory;  and  that  after  1813  his  father  did  not  live  out- 
side of  Illinois  Territory,  and  that,  as  he  then  learned  and 
understood  from  common  report,  as  well  as  his  father,  his 
father  had  purchased  this  house  in  1812,  and  from  that  time 
regarded  it  his  home. 

Beaubien  always  remained  in  Illinois,  and  his  family 
nearly  all  still  reside  in  Chicago.  Beaubien  was  residing  on 
this  tract  of  land  when  it  is  claimed  to  have  been  dedi- 
cated to  Chicago.  Hence  no  question  of  ignorance  of  rights 
arises  there. 

Mrs.  Clyborne  and  Mr.  Scott,  of  Chicago,  went  there  in 
1826,  and  from  and  after  that  date,  and  previous  to  1830, 
testify  that  people  coming  to  the  country  were  in  the  cus- 
tom of  settling  down  on  any  unreserved  land  not  occupied 
by  another,  and  making  their  improvements,  and  it  was  un- 
derstood that  the  United  States  laws  would  give  them  a  first 
and  exclusive  right  to  buy  the  tract  when  it  should  come 
into  the  market.  In  1826  Mrs.  Clyborne  only  went  through 
•Chicago,  stopping  over  in  Chicago  one  winter,  and  went 


8 

down  to  near  what  is  now  Ottawa,  Illinois,  some  eighty 
miles  out  of  Chicago,  where  her  father  two  years  before  had 
purchased  one  of  these  unentered  pre-emption  rights,  mov- 
ing on  to  it  from  Ohio.  Both  of  these  witnesses  swear  that 
these  rights  were  regarded  to  be  as  sacred  before  entry  at  the 
Land  Office  as  patent  titles  now  are,  as  much  private  prop- 
erty as  a  horse  or  a  cow.  Up  to  1830,  it  may  be  said,  these 
early  laws  were  the  only  laws  in  force  in  Illinois.  Hence 
the  rights  they  speak  of  were,  in  general,  settlement  rights, 
that  commenced  at  a  far  later  date  than  this  of  Beaubien's, 
under  the  same  laws  as  his. 

That  there  had  been  an  early  settlement  on  this  land  prior 
to  1812  is  a  part  of  the  early  history  of  the  northwest,  re- 
corded by  various  writers,  and  never  disputed  or  questioned; 
and  even  if  Beaubien  had  gone  on  to  this  land  even  as  late 
as  1823,  as  the  owner  of  this  original  right,  it  would  have 
been  to  him  equivalent  to  a  residence  on  this  land  from  as 
early  as  1804,  or  thereabouts,  as  these  rights  by  their  terms 
were,  before  entry,  assignable,  and  invested  the  assignee  with 
all  the  rights  of  the  assignor.  Hughes  vs.  United  States,  4th 
Wallace,  232  ;  Bird  vs.  Cravens  e*  al.t  1st  Mo.,  282,  and  19th 
Wallace,  153,  Sawyer  vs.  Pritchett. 

In  this  last  case  it  was  the  construction  of  the  same  lan- 
guage under  a  different  law.  The  other  cases  were  under  this 
identical  law,  and  that,  in  1823,  that  none  other  than  Beau- 
bien had  any  settlement  right  on  this  land,  will  not  be  ques- 
tioned. Hence,  he  was  not  only  the  owner  of  the  first,  but 
of  all  the  settlement  titles  in  this  fractional  quarter  section  at 
that  time,  if  the  expression  is  allowable.  We  much  prefer 
that  these  affidavits,  which  are  printed  in  the  appendix,  shall 
be  read,  as  an  abstract  of  them  does  not  do  them  justice.  A 
substantial  abreviated  statement  of  these  facts  has  been  for- 
warded by  us  to  the  Chicago  Daily  Tribune  and  to  the  Chi- 
cago Times,  and  are  expected  to  appear  Sunday,  March  3d, 
in  print  in  both  of  them. 

If  they  are  not  true  they  can  be  disproved.  We  could 
have  cumulated  this  proof  by  going  several  hundreds  of 


9 

miles,  to  where  the  witnesses,  then  boys  in  Chicago,  now 
live.  We  did  not  think  it  necessary  to  do  this,  nor  have  the 
means  to  spare,  unless  necessary.  We  can  do  so  still.  We 
believe  they  will  not  be  questioned. 

In  the  case  in  13th  Peters,  498,  the  suit  was  at  law  a  case 
of  ejectment,  which  it  was  known  could  not  be  maintained 
on  an  equitable  title,  but  as  the  State  statutes  of  Illinois  had 
provided  that  a  final  Land  Office  certificate  should  be  equiv- 
alent to  a  patent  to  maintain  ejectments,  it  was  hoped  to 
make  the  certificate  that  had  been  issued  under  the  law  of 
June  19,  1834,  the  basis  of  recovery,  and  this  law  only  re- 
quired possession  on  the  date  of  the  law,  June  19, 1834,  and 
to  have  cultivated  some  portion  of  the  tract  in  1833.  The 
only  thing  that  could  avail  was  to  show  that  the  President 
had  not  been  by  law  invested  with  jurisdiction  to  reserve 
this  land  in  1824,  and  that,  therefore,  the  land  was  not  within 
the  exceptions  contained  in  the  law  of  June  19, 1834,  and 
that  by  the  act  of  June  26,  1834,  and  the  proclamation  for 
public  sale  in  1835,  not  excepting  this  land,  the  land  had 
been  restored  to  the  jurisdiction,  and  was  then  in  the 
jurisdiction  of  the  register  and  the  receiver  to  sell,  and  that 
their  sale  had  passed  the  land  to  Beaubien  on  one  of  these 
certificates  under  which,  it  was  believed  by  the  able  counsel 
in  that  case,  ejectment  could  be  maintained,  this  being,  in 
fact,  so  decided  by  the  Supreme  Court  of  Illinois  in  that 
very  case. 

Now  while  in  fact  this  land,  as  we  think,  was  erroneously 
reserved  in  1824,  as  the  terms  of  the  1813  law  were  more 
than  a  license  to  buy  the  land  in  case  it  should  at  some  time 
be  proclaimed  for  sale,  and  in  fact  guaranteed  this  right 
to  enter  and  pay  whether  the  tract  should  ever  or  not  be  pro- 
claimed for  sale,  and  invested  the  settler  before  entry  with 
an  assignable  interest,  for  which  if  a  note  should  have  been 
given,  it  could  between  the  original  parties  be  sued  on  and 
a  recovery  had;  and  the  law  impliedly  provided  that  within 
the  given  time  to  enter  and  buy,  the  land  should  not  be 
reserved.  (1st  Att'y  GenPs  Opinions,  291.)  Nevertheless^ 


10 

the  president,  having  been  invested  with  jurisdiction  and 
power  to  reserve,  and  having  exercised  that  jurisdiction  by 
reserving  his  judgment,  though  erroneous,  he  having  been 
invested  with  jurisdiction  to  render  it,  so  long  as  it  would 
stand,  would  be  as  conclusive  as  though  the  land  reserved 
had  been  at  the  time  in  the  occupancy  of  a  settler  under  the 
1841  law.  The  difference,  however,  would  be  that  when 
the  reservation  in  this  case  should  cease,  the  rights  of 
the  settler,  and  how  far  vested  in  this  case  are  to  be  deter- 
mined solely  by  the  1813  law,  the  law  they  arose  under  and 
the  construction  that  that  law  had  received  before  and  at  the 
time  the  reservation  was  made. 

Gelpke  vs.  City  of  Dubuque,  1  Wall.,  175,  205. 

Chicago  vs.  Sheldon,  9  Wall.,  50. 

Caldwell  vs.  Carrington,  9  Pet.,  86. 

As  the  entry  and  receipt  in  that  case,  which  was  under 
the  1834  law,  was  the  sole  basis  for  recovery,  no  case  that 
could  be  made  by  testimony,  stipulation,  or  otherwise,  under 
any  other  or  earlier  law  could  avail,  none  was  attempted. 
That  case  was  entirely  an  agreed  case,  for  the  sole  purpose 
of  trying  the  virtue  of  that  receipt,  and  not  a  single  witness 
in  the  case  was  called  at  any  stage,  and  all  the  recitals  in 
it  are  based  on  the  stipulations  made  to  determine  the  effect 
of  the  1834  entry,  the  tract  not  having  been  subject  to 
«ntry  under  the  1834  law ;  nor  would  it  have  then  been 
under  the  1813  law,  because,  still  a  reservation,  it  matters 
not  what  would  have  been  the  effect  of  an  entry  then  under 
the  1813  law,  which  Beaubien  had  shown  himself  entitled 
to  had  the  land  then  been  in  the  jurisdiction  of  the  register 
and  receiver  to  dispose  of  under  any  law. 

That  question  did  not,  and  could  not,  until  now  arise, 
that  the  record  of  reservation  is  now,  for  the  first,  as  we  be- 
lieve, to  be  set  aside,  and  thereby  allow  the  older  equitable 
title  still  in  force  in  abeyance  to  revive,  and  for  which  the 
Government  is  solely  trustee  of  the  legal  title,  and  as  Beau- 
bien was  then  the  absolute  owner  of  the  equitable  title,  a 
title  that  he  could  then  assign  and  convey  and  vest  the  pur- 


11 

chaser  with  all  of  his  rights,  and  do  with  it  all  that  lie  could 
with  a  perfected  equitable  title,  that  he  could  then  have 
been  invested  with  by  an  individual  legal  owner.  The  Beau- 
bien  rights  now  are  to  be  determined  by  the  same  rule  that 
in  such  a  case  would  prevail. 

We  concede  that  by  the  entry  and  receipt  of  Beaubien 
under  the  1834  law,  the  subject  of  controversy  in  the  13th 
Peters  case,  and  called  in  that  case  Beaubien's  purchase, 
Beaubien  acquired  no  title  in  law  or  equity  whatever, 
the  entry  having  been  void ;  that  that  court  was  not  invested 
with  jurisdiction  to  hear  or  determine  any  other  ques- 
tion than  under  that  entry  and  so-called  purchase,  and  did 
not  attempt  to,  and  had  it  attempted  to,  what  it  would  have 
done  would  have  been  a  nullity;  therefore  the  case  falls  back 
as  to  what  were  Beaubien's  rights  in  the  land  when  reserved 
then  in  abeyance,  and  now  to  revive  and  be  respected. 
"What  would  they  have  been  if  that  said  purchase  had  not 
been  attempted,  subject  to  the  qualifications  that  these  rights 
are  to  be  fixed  by  the  1813  law,  as  construed  prior  to  1824, 
the  case  of  1st  Otto,  330,  answers.  These  rights  are  not 
based  on  any  entry,  but  on  this  early  pre-emption  law  of 
Congress,  vesting  the  settler  under  it  with  an  equitable  title 
in  this  land  from  the  date  of  his  settlement.  No  settlement 
right  arises  from  entry,  but  solely  from  the  laws  of  Con- 
gress authorizing  settlement  and  entry. 

When  the  reservation  of  a  settler's  land  is  canceled  and 
vacated  the  settler's  right  to  the  land,  under  the  law  that 
right  originated  under  and  was  created  by,  revives  in  full 
force,  the  same  as  if  his  property  had  been  taken  for  any 
other  public  purpose,  and  that  use  had  ended.  (1st  Otto, 
330;  Shepley  d  al.  vs.  Cowan  et  al.) 

But  when  an  old  right  like  this  revives  it  must  not  only 
be  considered  by  the  old  law  under  which  it  arose,  but  by  the 
construction  that  was  given  that  law  at  the  time.  Qelpke 
vs.  City  of  Dubuque,  1  Wall.,  175;  Chicago  vs.  Sheldon,  9th 
Wall.,  50;  Caldwell  rs.  Carrington,  9  Pet,  86. 

That  law  authorized  assignment  from  date  of  settlement 


12 

and  before  entry,  which  the  1841  law  never  has.  The  1813 
law  did  not  make  a  note  given  for  one  of  these  rights  void, 
as  it  is  for  a  right  under  1841  law  before  final  and  last  entry, 
and  final  payment.  This  1813  law  must  be  given  its  full 
efficacy  now. 

But  it  is  said  that  this  revivor  cannot  take  place  in  this 
case  for  the  reason  that  Beaubien's  receipt  was  canceled  by 
a  decree  of  court,  for  the  reason  that  it  had  been  issued 
when  his  land  was  not  subject  to  sale  by  the  Land  Depart- 
ment. The  following  is  a  full  record  of  everything  to  be 
found  in  that  case,  a  case  that  was  commenced  before  1839: 

[No.  2,710.] 

STATE  or  ILLINOIS,          \ 
Cook  County,  City  of  Chicago,  j  s  ' 

James  "W.  Brockway,  being  first  duly  sworn,  makes  oath 
and  says  that,  he  is  the  Recorder  of  the  county  aforesaid,  and 
that  all  the  records  of  the  Recorder's  office  of  said  county, 
existing  on  and  before  October  eighth,  eighteen  hundred 
and  seventy-one,  were,  on  that  day  and  the  succeeding  day, 
destroyed  by  fire,  and  that  after  said  fire  the  constituted 
authorities  of  said  county  purchased  and  placed  in  said  Re- 
corder's office  certain  original  letter-press  copies  of  abstracts 
made  before  said  fire  by  disinterested  parties,  the}7  being  a 
firm  of  abstract  makers  in  said  City  of  Chicago,  known  as 
Wilmauns  &  Pasdeloup,  which  said  letter-press  copies  were 
placed  in  said  office  in  the  charge  of  the  Recorder,  and  that 
certified  copies  therefrom,  under  the  seal  of  the  Recorder, 
are  used  in  business  transactions  in  said  city  and  county, 
and  that  on  pages  two  hundred  and  eighty-nine  and  ninety, 
in  volume  number  sixteen,  of  Letter-press  Copies  of  Ab- 
stracts of  said  firm  of  "Wilmanns  &  Pasdeloup,  there  appears 
the  following  entries  which  affiant  has  caused  to  be  copied 
therefrom  in  full : 

The  said  entries  being  as  follows,  numbered  thirty-three 
(33)  and  thirty-four  (34)  of  abstract : 


13 

[33.] 

E.  D.  TAYLOR, 

Receiver, 
To 
JOHN  BAPTISTE  BEAUBIEN. 

Certificate  No.  6,  dated  May  28,  1835,  and  recorded  June 
26,  1835,  in  book  D,  page  168. — Pre-emption  act,  19  June, 

1834.  Land    office   at   Chicago,   Illinois.      Acknowledges 
receipt  of  $94.61,  in  full  payment  for  the  southwest  fractional 
quarter  of  section  10,  in  T.  39  K,  of  R.^14  E.,  of  3d  P.  M., 
containing  75.69  acres. 

[34.] 

THE  UNITED  STATES  OF  AMERICA,") 

vs. 
JOHN  B.  BEAUBIEN,  JAMES  WHIT-  \ 

LOCK,  EDMUND  D.  TAYLOR,  SYD-  j 

NEY  BREESE,  and  JAMES  M.  STRODE  j 

In  the  Circuit  Court  of  United  States  for  the  District 
of  Illinois.  In  chancery.  Bill  to  set  aside  the  receipt  last 
shown  June  13,  1840. 

The  bill  in  this  cause  having  been  taken  pro  confesso  against 
the  defendant  James  Whitlock,  and  the  other  defendants 
having  answered,  and  the  said  cause  having  been  brought 
on  to  a  hearing,  &c.,  and  it  appearing  to  the  said  court  that 
the  southwest  fractional  quarter  of  section  10,  T.  39  N.,  of  R. 
14  E.,  of  3d  P.  M.,  situated  in  the  Chicago  land  district  was 
a  military  reservation  of  the  United  States,  and  not  subject 
to  enter  and  purchase  by  the  said  defendant  John  B.  Beau- 
bien  by  pre-emption,  it  is  therefore  ordered,  adjudged,  and 
decreed  by  the  said  court,  that  upon  the  receiver  of  the 
United  States  Land  Office  at  Chicago  refunding  or  tendering 
to  the  said  John  B.  Beaubien  the  sum  of  $94.61,  being  the 
amount  of  the  purchase  money  paid  by  the  said  John  B.  Beau- 
bien to  Edmund  D.  Taylor,  the  then  receiver  of  said  Land  Of- 
fice, when  the  said  Beaubien  entered  the  said  land  on  May  28, 

1835,  as  mentioned  in  the  receiver's  receipt  to  said  Beaubien, 
that  thereupon  said  Beaubien  deliver  and  surrender  up  to 


14 

the  receiver  of  the  Land  Office  at  Chicago,  for  the  purpose 
of  being  canceled,  the  said  receiver's  receipt  so  given  by  him 
for  the  purchase  money  of  the  said  land ;  and  that  he  also 
deliver  to  the  said  receiver  to  be  canceled,  the  certificates, 
given  by  the  said  James  Whitlock  and  said  James  M.  Strode,, 
as  Register  of  said  Land  Office,  to  the  said  Beaubien,  of  his, 
the  said  Beaubieu's  entry  and  purchase  of  said  land ;  and  the 
said  court  do  further  order,  adjudge,  and  decree,  that  said 
entry  and  purchase  of  the  said  tract  of  land  by  the  said  John- 
B.  Beaubien  and  the  receiver's  receipt,  and  the  said  register's 
certificate  be  vacated,  canceled,  annulled,  and  held  for  nought, 
and  that  said  John  B.  Beaubien  and  the  other  defendants  be 
restrained  and  perpetually  enjoined  from  ever  setting  up  or 
asserting  any  title  or  claim  to  the  said  land,  by  virtue  of  the 
said  entry  and  purchase,  and  that  the  defendants  pay  the 
costs  of  this  suit. 

Affiant  further  states  that  the  foregoing  is  the  full  text  of 
the  items,  number  thirty-three  and  thirty-four  as  shown  in 
said  abstract,  in  volume  sixteen  of  said  letter-press  copies. 

JAS.  W.  BROCKWAY, 

Recorder. 

Sworn  to  before  me  and  subscribed  in  my  presence,  this 
8th  day  of  December,  A.  D.  1877. 

HENRY  L.  HERTZ, 
[SEAL]  Notary  Public. 


STATE  OF  ILLINOIS,         1 
Cook  County,  City  of  Chicago,  / 

Samuel  Daniels,  being  first  duly  sworn,  makes  oath  and 
says  that  he  has  examined  the  abstract  from  which  the  above 
copies  of  entries  were  taken,  and  that  said  abstract  does  not 
contain  any  entry  or  statement  pertaining  to  said  suit  not 
above  copied  and  shown ;  that  affiant  is  one  of  the  deputies 
of  said  office  to  which  this  matter  has  been  referred,  and 
that  affiant  does  not  know  of  anything  in  the  Recorder's  of- 


15 

fice  pertaining  to  said  suit  now  in  existence  that  will  add 
anything  to  the  information  contained  in  said  entries  above 
copied.  Affiant  has  examined  about  fifteen  abstracts  of 
portions  of  said  property  this  day,  and  finds  nothing  in  re- 
lation to  said  suit  in  any  or  either  of  them,  other  or  dif- 
ferent from  that  contained  in  the  entries  above,  or  that  ex- 
plains when  it  was  started. 

SAMUEL  DANIELS. 

Subscribed  and  sworn  to  before  me  this  10th  day  of  De- 
cember, A.  D.  1877. 

HENRY  ^.  HERTZ, 
[SEAL]  Notary  Public. 


Certificate  No.  6 —  Voucher  No.  4. 

RECEIVER'S  OFFICE, 
Chicago,  Illinois,  December  18,  1840. 

Eli  S.  Prescott,  Receiver  of  Public  Money  at  Chicago, 
Illinois,  has  this  day  refunded  to  me  the  sum  of  $94.61, 
being  the  amount  paid  by  me  for  the  southwest  fractional 
section  No.  10,  in  township  No.  39  north,  range  No.  14  east, 
of  the  third  principal  meridian,  on  the  28th  day  of  May, 
A.  D.  1835. 

The  tntry  of  said  land  by  myself  being  invalid,  in  consequence 
of  its  being  reserved  for  military  purposes,  as  per  letter  from 
the  Commissioner  of  the  General  Land  Office. 

JOHN  B.  BEAUBIEN. 

If  this  1835  receipt  was  void  from  the  time  made,  the 
making  of  it,  the  cancellation  of  it,  and  the  return  of  the 
money  left  both  Beaubien  and  the  Government  as  they 
would  have  stood  if  none  of  these  things  had  occurred. 
Void  conveyances  leave  grantor  and  grantee  as  they  would 
have  been  without  the  void  conveyance,  and  where  the  void 
conveyance  is  canceled,  and  the  consideration  money  re- 
turned, prior  rights  still  exist  as  before. 


.16 

A  pre-emptor's  right  under  this  1813  law,  did  not  and 
could  not  arise  from  an  entry  under  it.  Under  it  like  under 
all  other  settlement  laws,  the  settler's  title  arises  from  the 
law  itself,  which  is  in  equity  a  gratit  by  Congress  of  the  land 
itself  to  the  settler  from  the  date  of  settlement,  when  so  pro- 
vided in-  the  law  as  was  the  case  here,  while  the  entry 
is  only  one  of  the  modes  provided  to  evidence  the  previous 
grant.  That  title  existed  in  Beaubien  while  none  of  his 
land  was  reserved,  and  was  from  the  date  of  its  origin  the 
subject  of  sale,  barter  or  exchange,  and  protected  by  law, 
which  are  all  the  privileges  pertaining  to  any  property.  It 
was  not  annihilated  by  the  reservation,  but  only  placed  in 
abeyance  and  suspense.  It  is  now  to  revive  in  Beaubien's 
heirs  in  all  its  original  force  controled  by  this  1813  law.  (1st 
Otto,  330.) 

The  second  bar  or  estoppel  alleged  is  this  :  That  August 
1,  1854,  Congress  simply  directed  the  Land  Commissioner 
to  convey  to  Beaubien  nine  certain  lots  that  were  in  equity 
Beaubien's  before  the  conveyance  was  made.  This  direc- 
tion did  not  in  the  act  even  assume  to  either  give  or  grant 
anything  to  Beanbien,  because  evidently  his  before,  or  re- 
quire anything  to  be  surrendered  by  Beaubien  not  included 
in  these  nine  lots.  The  act  is  in  10th  vol.  Stat,  page  805. 
Read  it.  The  surveyor  sent  to  Chicago  to  survey  these  lots 
made  this  report: 

"I  am  requested  by  Mr.  Jean  Baptiste  Beaubien  to  state 
to  the  Department  that  he  has  had  assurances  from  reliable 
sources  that  it  was  the  design  of  the  framers  of  the  act  for 
his  relief,  of  August  1,  1854,  so  to  have  drawn  it  as  to  have 
given  him  all  the  public  ground  lying  south  of  the  line  of 
excavation,  except  what  was  reserved  for  the  marine  hospi- 
tal, and  the  streets  provided  for  in  the  survey  and  plat  of 
Mathew  Birchard,  agent  for  the  War  Department,  in  the 
year  1839;  and  Mr.  Beaubien,  therefore,  requests  that  the 
said  fraction  of  lot  ten  of  block  number  two,  which  lies 
south  of  the  line,  may  not  be  sold  or  offered  for  sale  until 
he  can  have  an  opportunity  of  petitioning  Congress  to  pass 


17 

an  explanatory  act  for  his  relief  on  this  subject.  I  beg  leave 
respectfully  to  recommend  his  request  to  your  favorable 
consideration,  for  the  reason  that  from  information  I  have 
received  from  highly  respectable  sources,  I  am  inclined  to 
think  his  impressions  are  well  founded." 

The  following  authorities  show  that  Beaubien,  by  taking 
these  lots,  was  not  estopped  from  his  right  to  his  remaining 
property:  Brooks  vs.  Haynes,  6th  Law  Report,  Equity  (6th,) 
page  25;  Hickox  vs.  Buckingham  et  al,  18th  Howard  et  al, 
182;  Brand  vs.  Virginia  Coal  and  Iron  Co.  et  al.,  3d  Otto, 
326;  Hoffman  Coal  Co.  vs.  Cumberland  Co.,  16th  Md.,456; 
Cumberland  Coal  Co.  vs.  Sherman,  30th  Barbour,  574. 

We  have  read  somewhere  in  the  books  that  estoppel  is 
odious  to  equity,  and  not  favored ;  that  it  is  not  presumed, 
but  must  be  strictly  alleged  and  clearly  proved  by  the  party 
who  would  avail  himself  of  its  protection,  and  that  it  is  only 
to  be  used  as  an  aid  and  protection  to  equity,  and  never  to 
advance  wrong;  and  that  it  can  only  prevail  when  the  party 
against  whom  it  is  prayed  has  not  only  done  wrong,  but 
only  where  that  wrong  has  been  the  cause  of  loss  and  injury 
to  him  who  invokes  its  protection.  In  summing  up  this 
matter  we  find  that  the  Government  has  had  out  of  Beau- 
bien's  land  $272,598,  some  of  which  it  has  enjoyed  the  use 
of  for  thirty-nine  years,  for  which  Beaubien  has  never  had 
any  allowance  or  compensation,  and  does  not  ask  any.  Is 
this  such  a  monstrous  outrage  and  wrong  by  Beaubien  that 
he  should  be  estopped  from  claiming  any  remaining  part  of 
his  land  from  the  trustee  of  his  that  has  thus  treated  him? 
If  so,  then  his  heirs  are  estopped  from  claiming  this  grant, 
otherwise  not. 

Is  not  this  act  one  of  the  strongest  recognitions  of  the 
Beaubien  equitable  title  in  this  land  that  the  Government 
could  have  made? 

Could  an  ordinary  trustee  make  such  a  conveyance  of  a 
part  of  the  trust  property,  and  escape  from  conveying  the 
balance  ? 

If  an  executor  had  held  ten  blocks  in  trust,  and  conveyed 
one  by  the  same  language  as  the  Government  used  here,  he 
2 


18 

would  not  have  dared  to  plead  estoppel  to  a  bill  to  compe) 
a  conveyance  of  the  balance;  and  does  not  the  same  rule 
that  would  control  the  executor,  bind  the  Government  here? 

It  is  claimed  that  Congress  by  the  act  of  June  24,  1864,. 
(15  vol.  Statutes,  142,)  directing  the  marine  hospital  at 
Chicago  to  be  sold  to  the  highest  bidder,  thereby  confirmed 
to  the  City  of  Chicago  this  remaining  land  of  Beaubien's. 
It  would  seem  that  ratification  in  this  case  would  be  ob- 
tained by  a  very  circuitous  route,  and  anomalous  law.  The 
following  being,  as  we  have  supposed,  the  law  of  ratification 
where  the  sale  to  be  ratified  was  voidable,  not  void: 

"To  render  the  ratification  of  such  a  sale  effective  and 
conclusive,  the  principal  must  at  the  time  of  the  ratification 
be  fully  aware  of  every  material  fact,  and  this  act  of  ratifi- 
cation be  an  independent  substantive  act,  founded  on  com- 
plete information,  and  he  must  not  only  be  aw^are  of  the 
facts,  but  apprised  of  the  law  as  to  how  these  facts  would  be  dealt 
with,  if  brought  before  a  court  of  equity"  Hoffman  Coal  Co. 
vs.  Cumberland  Co.,  16th  Md.,  456;  Cumberland  Coal  Co. 
vs.  Sherman,  30th  Barbour,  574. 

The  deed  which  was  made  by  the  Secretary  of  the  Treas- 
ury in  1872,  for  the  old  marine  hospital  we  believe  contained 
some  words  and  recitals  a  little  broader  than  this  act  last 
cited,  or  the  act  of  May  25th,  1872,  in  reference  to  this 
same  matter,  by  which  it  is  claimed  that  if  no  act  of  Con- 
gress had  ratified  the  void  sales  of  the  Secretary  of  War  in 
1839,  that  this  recital  by  a  department  officer  of  the  Govern- 
ment would  do  it;  that  such  a  recital  would  be  an  act  of 
the  Government. 

We  believe  it  a  well  settled  principle  that  no  officer  not 
having  authority  to  do  a  thing  can  ratify  it  and  make  it 
binding.  If  the  recitals  of  the  Secretary  of  the  Treasury  in 
making  this  last  deed  to  James  F  Joy,  his  authority  being 
limited,  defined  by  these  two  last  acts  of  Congress,  could 
ratify  to  any  person  their  title  to  land  outside  of  the  marine 
hospital  grounds,  he  should  while  he  was  at  it  have  fixed 
everybody  out  in  the  United  States,  and  this  would  settle  that 


19 

department  officers  can  act  as  well  without  acts  of  Congress 
to  authorize  them  as  with  such  acts,  and  that  Congress  had 
best  adjourn  and  go  home,  and  not  again  meet,  as  any  legis- 
lation it  may  make  is  unnecessary,  and  is  susceptible  of  dis- 
approbation by  department  officers. 

It  matters  not  as  to  whether  the  sales  of  1839  were  au- 
thorized or  not,  as  to  the  right  of  the  Beaubien  heirs  to 
receive  such  title  as  remains  in  the  United  States,  to  the 
open  common  between  Madison  and  Randolph  street,  these 
streets  being  considered  as  extended  east  to  low  water  mark 
on  the  shore  of  Lake  Michigan,  for  as  in  1839  the  Govern- 
ment was  a  trustee  for  Beaubien  for  any  of  the  lands  in  this 
quarter  section,  it  remained  such,  and  is  such  now,  for  any 
title  it  retained,  which  is  all  the  title  it  now  has  or  can  give 
to  any  one,  and  belonging  to  the  Beaubien  heirs,  she  has 
no  discretion  but  to  make  the  grant  to  them. 

Assuming  the  dedication  to  have  been  valid,  it  was  only 
for  the  term  that  the  land  should  remain  vacant  of  build- 
ings, and  no  longer.  It  was  not  an  assurance  that  after  that 
time  the  residuary  title  retained  in  the  Government  would 
also  be  donated  to  Chicago.  It  will  be  asserted  that  this 
residuary  title  retained  has  no  value,  and  therefore  should 
be  donated.  If  this  be  so,  why  has  Chicago  labored  for  years 
to  obtain  it  from  Congress;  and  if  to  be  donate'1  why  shall 
not  the  owners  be  consulted  by  their  trustee  before  donation 
is  made.  Let  me  suggest  to  you  that  there  is  a  rule  of  law 
that  prevails  in  Illinois  to  fix  the  respective  values  of  such 
estates,  and  it  is  this : 

First,  what  is  the  land  in  question  worth  as  an  open  com- 
mon? Secondly,  what  is  it  worth  to  do  as  you  please  with? 
The  difference  of  these  two  values  fixes  the  true  and  legal 
value  of  the  estate  Chicago  now  asks  as  a  donation. 

Under  this  rule,  if  condemnation  proceedings  are  to  be 
had,  the  Government  will  receive  at  least  two-thirds  of  the 
value  of  the  land  in  question,  as  the  value  of  the  whole  title 
would  be  fixed  by  any  jury  to  condemn,  and  these  proceed- 
ings will  follow  if  Congress  is  firm.  As  an  open  common. 


20 

this  land  is  now  virtually  a  nuisance.  We  shall  in  a  few 
days  have  affidavits  from  reliable  real  estate  agents  of  Chi- 
cago to  support  these  statements,  that  on  this  basis  the  title 
now  asked  by  Chicago  as  a  donation,  has  a  larger  actual 
value  than  the  other  title  has  which  she  now  claims  to  own. 
The  adjoining  proprietors  did  not  cause  the  suit  in  2d  Bissell, 
174,  to  be  brought,  because  they  preferred  the  open  space  to 
depot  grounds,  but  as  the  only  means  to  force  the  City  of  Chi- 
cago to  divide  and  give  to  them  the  one-eighth  of  what  should 
be  received  of  the  proceeds,  which  by  compromise  as  we  are 
advised  by  the  Chicago  press,  has  since  been  agreed  on 
between  them  and  the  city,  when  a  sale  of  the  property  can 
be  perfected.  But  this  land  being  ours,  Congress  has  no 
option  to  either  convey  to  Chicago  or  retain  to  be  condemned 
She  must  convey  to  the  Beaubiens  or  be  a  repudiator. 

Will  a  grant  to  Chicago  now  aid  her  one  way  or  another 
in  any  controversy  with  the  Valentine  scrip  hereafter  in  the 
courts  ?  Does  the  value  of  land  have  anything  to  do  writh 
the  nature  of  its  title;  and  the  setting  aside  of  this  land  to 
Chicago,  having  in  fact  been  a  void  act,  has  this  land  not 
since  remained  unappropriated  unless  held  by  being  reserved 
or  by  the  Beaubien's  equitable  titfe,  and  has  not  all  the  title 
therein  been  carried  out  of  the  Government  by  that  scrip 
that  was  lo^  table  on  any  vacant  unappropriated  land,  as  this 
in  such  u  case  was  ?  And  as  such  location  is  iu  fact  equiva- 
lent to  an  express  grant  of  the  land  by  boundaries,  after  a 
repudiation  of  the  Beaubien  title,  what  would  a  grant  to 
Chicago  now  avail  ? 

Much  restlessness  was  exhibited  by  the  Chicago  papers 
why  the  grant  they  ask  was  not  consummated  at  once  by  Con- 
gress, when  the  recent  decision  of  Commissioner  William- 
son, holding  this  land,  has  passed  out  of  the  United  States 
under  the  Valentine  land  scrip,  was  made.  If  this  has  oc- 
curred, would  the  prayed  for  grant  to  Chicago  amount  to 
anything?  Is  not  Chicago  in  possession,  and  can  she  not 
defend  that  possession  if  no  title  was  passed  under  the  Val- 
entine land  script,  and  can  she,  if  the  title  has  passed  ? 


21 

But  if  the  grant  is  made  of  the  legal  title  to  the  Beaubieri 
heirs,  they  can  assert  their  prior  pre-emptive  rights  in  the 
land  that  have  existed  since  April  29,  1816,  and  the  Valen- 
tine scrip  location  will  pass  for  nothing,  though  the  land 
may  have  been  vacant  and  unappropriated  as  to  all  others 
than  the  Beaubien  interest  in  it  at  the  time  that  location 
was  made. 

Since  the  Chicago  press  has  come  to  understand  this  they 
are  not  as  urgent  as  they  were  against  the  Beaubiens. 

The  Illinois  Senators  and  Representatives  were  called 
upon  by  the  Chicago  press  to  vote,  and  that  speedily,  this 
land  to  Chicago. 

It  is  not  necessary  to  remind  these  gentlemen  that  they 
are  acting  under  the  solemnities  of  an  oath,  and  that  this  mat- 
ter between  Chicago  and  the  Beaubien  heirs  is  to  be  deter- 
mined on  its  legal  merits,  the  same  as  though  it  was  a  mat- 
ter between  two  equally  obscure  and  uninfluential  claimants; 
and  is  to  be  determined  on  the  proofs  adduced,  in  legal  and 
proper  shape,  and  not  on  that  of  irresponsible  newspaper 
assertions,  and  on  the  law  applicable  to  these  proofs;  and 
that,  judged  by  this  test,  the  claim  of  Chicago  would  not 
stand  a  moment  with  any  unbiased  mind  in  Congress  or 
out  of  it.  Her  request  is  not  claimed  to  be  based  on  any 
legal  or  even  moral  right.  It  is  only  a  petition  for  charity. 
The  claim  of  the  Beaubiens  is  that  Congress  perform  a  part 
of  its  original  promise  to  their  father  which,  in  similar  cases, 
since  that  was  made,  yes,  in  over  a  hundred  thousand  cases, 
the  Government  has  performed  and  recognized  thereby  that 
it  was  both  her  moral  and  legal  duty  to  do  it,  her  duty  in 
none  of  these  cases  being  any  more  binding  than  in  this. 

But  it  will  be  said  that  in  these  cases  the  land  had  not 
attained  so  great  value  as  this,  nor  the  right  have  been  so 
long  in  force  When  was  the  increased  value  that  had 
attached  to  the  settlers'  lands  held  a  sufficient  justification 
for  the  Government  to  repudiate  its  promise  to  convey,  so 
long  as  the  settler  had  not  placed  himself  in  default?  When 
was  that  increased  value  ever  accounted  to  belong  to  the 


22 

trovernment,  and  not  to  the  settler?  Does  not  the  same 
principle  and  duty  govern  this  case  that  does  that  of  every 
settler  in  the  wilds  of  the  West?  Did  not  our  father  settle 
here  when  the  nearest  post  was  180  to  200  miles  distant, 
being  Fort  Wayne,  Mackinaw  and  Detroit?  Was  he  not  in 
possession  and  in  no  default  when  this  land  was  reserved? 
Was  he  not  still  in  possession  when  this  common  is  claimed 
to  have  been  set  aside  to  Chicago,  and  even  until  the  very 
house  the  Government  had  assured  him  he  might  die  in  was 
by  the  Government  sold  over  his  head,  and  he  compelled  to 
get  out  of  it?  Did  this  inhuman  and  brutal  treatment  at  the 
hands  of  the  Government  make  their  duty  less  now,  or  in  any 
way  impair  or  destroy  the  Beaubien  rights  in  land  still 
remaining  in  the  name  of  the  Government?  Has  it  not 
always  been  accounted  the  older  the  equitable  title  the 
better,  so  long  as  no  default  has  occurred  in  it,  and  the  legal 
title  is  still  in  the  Government?  Must  all  the  rules  of  law 
and  justice  be  subverted  to  rob  the  Beaubien  heirs  for  the 
benefit  of  Chicago? 

Chicago  is  a  most  inordinate  beggar.  She  begged  that 
this  land  be  left  unsold  in  1839,  for  her  to  enjoy  so  long  as 
it  should  remain  vacant  of  buildings.  She  got  this  done, 
and  thereby  decreased  the  proceeds  of  that  sale  by  several 
thousands  of  dollars,  as  we  have  the  proofs  to  show.  She 
claims  to  have  procured  nearly  a  mile  front  of  park  lands,  by 
donation  from  the  canal  trustees  of  trust  property  donated 
by  Congress  for  a  canal;  that  adjoins  this,  and  is  now  worth 
several  millions  of  dollars.  Its  Court-House  square,  now 
worth  over  a  million  of  dollars,  was  a  donation  from  the  same 
fund.  Also,  from  this  same  fund  and  by  a  tax  laid  on  the 
State  of  Illinois  at  large,  it  had  a  sewer  built  for  it  at  an 
expense  of  two  millions  five  hundred  thousand  dollars,  to 
bear  interest  until  returned;  the  State  and  this  canal  fund 
undergoing  this  expense  to  drain  Chicago,  when  the  official 
reports  of  the  canal  show  the  canal  was  serving  and  could 
serve  all  the  demands  of  navigation  to  be  met  by  the  im- 


23 

provement,  at  an  average  annual  expense  of  less  than  ten 
thousand  dollars. 

In  view  of  these  facts  we  only  suggest  that  if  any  more 
charity  is  to  go  to  Chicago  from  the  General  Government, 
that  it  come  out  of  the  public  treasury,  and  not  from  the 
private  estate  of  the  Beaubien  heirs. 

One  of  the  friends  of  Chicago  has  said  to  us  that  he  has 
no  doubt  that  Beaubien  fully  complied  with  these  early  pre- 
emption laws;  but  intimates  that  if  this  be  true,  and  Con- 
gress shall  grant  the  Beaubien  land  to  Chicago,  the  Beau- 
bien heirs,  who  are  very  poor,  can  go  into  the  Chicago  courts 
and  sue  and  recover  it. 

Our  opinion  of  any  person  who  will  entertain  such  an 
opinion  for  a  moment  is,  that  he  is  either  an  imbecile  or  a 
fraud.  There  is  no  difference  between  a  trust  interest  in 
bonds  or  9  trust  interest  in  lands.  The  Government  is  a 
trustee  for  the  bonds  of  every  National  Bank,  to  secure  their 
•circulation.  Suppose  we  suggest  that  Congress  donate  the 
bonds  of  the  Chicago  National  Banks  to  the  City  of  Chi- 
cago, and  then  tell  the  banks  they  have  rights  in  the  courts 
to  recover  their  property,  and  sue  and  get  it.  Would  not 
the  cases  be  identical? 

If  the  British  or  any  other  Government,  holding  property 
•of  any  kind  in  trust  for  one  of  our  subjects,  should  know- 
ingly deliver  it  to  another,  and  then  say  to  our  subject  we 
knew  at  the  time  it  was  yours,  but  thought  you  could  re- 
•cover  it  in  the  courts;  unless  the  property  should  by  that 
government  be  returned  at  once,  or  atoned  for,  it  would  be 
an  act  of  war,  and  war  would  at  once  follow. 

Because  our  Government  is  sovereign  in  itself,  and  can- 
not in  the  nature  of  things  permit  any  other  power  to  inter- 
fere between  it  and  its  own  citizens  in  its  trust  relations 
with  them,  it  does  not  assume  to  use  this  cloak  as  a  shield 
to  commit  piracy  on  them.  It  is  not  supposed  to  wantonly 
3,nd  knowingly  take  and  convey  to  strangers  trust  property 
^s  a  donation.  If  a  department  officer  should  admit  that 
he  had  knowingly  conveyed  the  land  of  a  settler  to  a 


24 

stranger,  it  would  cost  him  his  position  immediately;  and 
it  would  be  such  a  gross  perversion  of  his  trust  as  to  make 
him  personally  responsible  for  any  damages  that  might  en- 
sue to  the  settler. 

This  case  has  evidently  been  referred  to  have  it  found  if 
there  are  any  private  rights  in  this  land  that  would  make  it 
improper  for  Congress  to  convey  it  to  Chicago,  and  there 
being  such  rights,  and  these  also  in  law  and  equity  being 
entitled  to  a  conveyance  from  Congress  to  their  owner,  it  is 
trusted  that  the  respective  committees  of  the  respective 
houses  of  Congress  will  report  against  the  asked  for  grant 
of  Chicago,  and  in  favor  of  that  asked  for  by  the  Beaubieu 
heirs,  and  that  Congress  will  ratify  that  action  by  making 
such  grant,  so  long  delayed  by  the  default  of  the  Govern- 
ment. 

"We  are  told  that  in  1839  all  the  equitable  title  of  this  land 
was  placed  in  Chicago,  the  legal  title  being  still  retained  by 
the  United  States,  and  to  substantiate  this  opinion,  2d  Bis- 
sell,  174,  is  referred  to. 

That  case  decides  directly  the  reverse  of  this  proposition, 
that  decision  being  that  this  laud  was  dedicated  only  so  long 
as  it  should  remain  vacant  of  buildings. 

This  residuary  title  we  have  shown  is  now  worth  morer 
and  would  be  condemned  if  not  given  away  at  a  higher  price 
than  the  title  the  City  of  Chicago  assumes  to  have. 

But  assuming  all  which  that  decision  claims,  that  is  that 
on  the  record  made  in  that  case,  and  the  things  assumed 
and  conceded  by  each  party  to  it  to  be  true,  that  there  was 
such  an  equitable  dedication  as  has  been  stated,  the  legal 
title  still  in  the  Government,  would  not  that  legal  title  exist 
in  trust  solely  for  the  older  equitable  title,  which  is  the 
Beaubien  title;  and  in  that  case  could  it  be  to  any  extent  a. 
trustee  to  the  City  of  Chicago.  Shall  the  rules  of  law  be 
subverted  in  his  case,  because  Chicago  has  power,  wealth,. 
&c.,  and  the  Beaubiens  are  poor  and  humble  ? 

In  regard  to  the  second  Bissell  case  it  should  be  recollected 
that  the  Beaubiens  were  not  a  party  to  it,  and  are  not  con- 


25 

eluded  by  it,  and  that  all  parties  concerned  in  it  were  inter- 
ested in  showing  and  making  a  case  of  dedication  of  some 
kind  appear;  the  purpose  of  the  city  being  to  sell,  and  gob- 
ble all  the  proceeds;  the  purpose  of  those  causing  the  suit  to 
be  brought,  and  using  the  name  of  the  United  States,  being 
to  let  her  sell,  when  she  would  make  a  division  with  them 
of  what  is  to  be  received  from  the  property,  which  it  is  un- 
derstood has  been  arranged. 

There  is  no  legal  or  moral  reason  why  several  hundreds 
of  thousands  of  dollars  should  be  given  to  Chicago,  even  if 
the  Beaubions  have  no  equitable  right  in  the  land.  She  did 
not  buy  a  farthing  at  the  1839  sale.  This  space  was  not 
left  open  to  enhance  the  amount  received  at  those  sales,  nor 
did  it  have  that  effect,  but  decreased  that  amount  by  from 
$2,000  to  $3,000,  as  no  one  can  dispute  who  will  look  at  the 
list  of  what  lots  brought  fronting  this  space  and  near  it 
compared  to  other  parts,  and  make  any  reasonable  allowance 
for  what  this  space  would  have  brought. 

This  space  was  left  open  in  violation  of  the  instructions 
to  the  agent  who  sold,  and  it  was  hardly  thought  by  the 
press  of  Chicago  at  the  time,  that  it  would  give  any  title  to- 
the  city,  but  was  asked  for,  nevertheless,  on  the  ground  that,, 
whether  authorized  or  not,  if  left,  they  would  get  the  bene- 
fit all  the  same. 

This  agent  had  also  been  instructed  that  if  he  should  not 
be  able  to  sell  the  land  at  Chicago,  to  adjourn  the  sale  to 
Detroit  or  New  York — a  most  remarkable  order  for  a  de- 
partment officer  to  make,  to  have  the  land  sold  (if  necessary 
to  effect  a  quick  sale)  at  a  place  a  thousand  miles  distant 
from  the  land  itself! 

The  sale  had  been  ordered  with  all  possible  dispatch  as 
soon  as  the  case  in  (13  Peters,  498,)  was  decided.  The  people 
of  Chicago  on  learning  of  it  at  once  petitioned  for  delay,  for 
time  for  Congress  to  act  in  the  premises,  and  assigned  with 
other  reasons  that  it  was  a  very  bad  time  to  sell,  and  gave 
the  reasons  why  it  was  a  bad  time,  and  good  reasons  too : 
but  the  object  was  to  get  the  land  sold  as  soon  as  possible,. 


26 

the  money  into  the  treasury,  and  improvements  started  be- 
fore Congress  could  meet  to  intercept  the  outrage,  hence 
reasons  for  delay  were  needless.  This  space  was  left  open 
to  reduce  the  indignation  existing  in  Chicago  against  the 
Government  for  this  Beaubien  outrage,  which  at  that  time 
hardly  had  any  bounds  with  party,  people  or  press,  and  was 
general  thoroughout  the  west,  and  justly  so  too. 

The  object  of  this  was,  that  if  the  land  should  be  certified 
back  to  the  Land  Department  as  the  law  required  it  to  be, 
it  would  go  in  the  usual  order  provided  by  law  for  sale  in 
that  department  to  the  pre-emptor  first,  at  public  sale  after- 
wards, and  then  private  sale,  and  Beaubien  would  step  in 
and  take  it,  as  he  could  make  proof,  and  would  have  to  pay 
but  $1.25  per  acre.  This  title  in  Beaubien  would  have 
enured  back  to  April  29,  1816,  and  cut  out  a  late  cabinet 
officer  and  his  'friends ;  therefore  such  a  sale  must  not  be 
made  and  was  not  made. 

In  conclusion,  it  being  conceded  that  the  legal  title  of 
this  land  is  still  in  the  Government,  and  therefore  held  in 
trust  solely  for  the  older  equitable  title,  which  is  the  Beau- 
bien title,  as  well  as  in  trust  for  any  residuary  title,  which 
in  equity  is  the  Beaubien's  also;  and  it  being  the  promise 
legal,  moral,  and  equitable  duty  of  the  Government  to  convey 
to  the  Beaubiens,  and  no  such  duty,  promise,  or  obligation 
resting  on  it  to  convey  to  Chicago,  it  is  trusted  that  she  will 
perform  this  obligation  to  the  Beaubiens ;  an  obligation  as 
sacred  in  law  and  honor  as  any  bond  ever  issued  for  money 
borrowed  by  the  Government,  and  as  much  within  the  power 
of  the  Government  to  make  when  this  early  law  was  passed, 
and  no  more  in  its  power  to  repudiate;  but  if  not  that 
she  will  not  convey  their  propert}7  to  Chicago,  and  tell  them 
.as  their  rights  are  prior  to  sue,  with  no  money  to  sue  Chicago 
in  the  courts  and  recover  it.  It  would  not  be  a  very  business- 
like or  honest  spectacle  for  the  United  States  Government 
to  make  of  itself,  notwithstanding  it  is  urged  by  Chicago's 
friends.  It  would  not  be  the  law  or  justice  usually  meted  out 
to  claimants  equally  poor,  obscure  and  uninfluential,  and 


•27 

would  be  such  marked  partiality  as  not  to  escape  the  atten- 
tion of  any. 

An  advocate  for  Chicago  is  represented  as  claiming:  first, 
that  because  a  purchase  by  Beaubien  at  the  Land  Office  m 
1835,  while  this  land  was  reserved  and  not  in  the  jurisdic- 
tion of  the  Land  Department  to  sell,  was  held  to  be  void, 
that  therefore  this  is  a  settlement  of  what  his  equitable  title 
would  be  when  the  reservation  should  cease,  and  the  prior 
equitable  right  existing  in  Beaubien  before  the  reservation 
should  revive,  which  the  United  States  Supreme  Court,  in 
1st  Otto,  330,  says  cuts  oft'  all  subsequent  accruing  titles, 
though  a  purchase  during  the  time  the  laud  was  not  sus- 
ceptible of  entry  would  have  been  void. 

The  United  States  Supreme  Court  in  1st  Otto,  330,  refers  to  the  cases  of 
Frisbie  vs.  Whitney,  9th  Wallace,  and  the  Yosemite  Valley  case,  15th  Wallace, 
77,  and  then  says :  '  'In  those  cases  the  Court  only  decided  that  a  party  by  mere  set- 
tlement upon  the  public  lands,  with  the  intention  to  obtain  the  same  under  the 
pre-emption  laws  (of  1841,)  did  not  thereby  acquire  such  a  vested  interest  in 
the  premises  as  to  deprive  Congress  of  the  power  to  dispose  of  the  property; 
that  notwithstanding  the  settlement  Congress  could  reserve  the  lands  from  sale 
whenever  they  might  be  needed  for  public  uses  or  for  arsenals,  custom  houses, 
or  other  public  purposes  for  which  real  property  is  required  by  the  Govern- 
ment." ******** 

"  But  whilst  according  to  these  decisions  no  vested  right  as  against  the  United 
States  was  acquired  until  all  the  prerequisites  for  the  acquisition  of  a  title  is  com- 
plied with,  parties  may,  as  against  each  other,  (as  between  the  Beaubiens  and 
Chicago,)  acquire  a  right  to  be  preferred  in  the  purchase,  or  other  acquisition 
of  the  land,  where  the  United  States  have  determined  to  sell  or  donate  the  property. 
In  all  such  cases  the  first  in  time  in  tae  commencement  of  proceedings  for  the 
acquisition  of  the  title,  where  the  same  are  regularly  followed  up,  is  deemed 
to  be  first  in  right. 

"So  in  this  caseChartrand,  the  ancestor,  by  his  previous  settlement  in  1835, 
upon  the  premises  in  question  and  residence  with  his  family,  and  application  to 
prove  his  settlement  and  enter  the  land,  obtained  a  better  right  to  the  premises 
under  the  law  then  existing  than  that  acquired  by  McPherson  by  his  subsequent 
State  selection  in  1849.  His  right  then  instituted  or  initiated  could  not  be  preju- 
diced by  the  refusal  of  the  local  officers  to  receive  his  proofs,  upon  the  declara- 
tion that  the  land  was  then  reserved.  *  *  So  soon  as  the  claim  (of  reserva- 
tion) was  held  to  be  invalid  to  this  extent  by  the  decision  of  this  Court  in 
March,  18G2,  (after  thirty  seven  years,)  the  heirs  of  Chartrand  presented  anew 
their  claims  for  pre-emption,  founded  upon  the  settlement  of  their  ancestor 
(in  1835.)  *  *  *  *  *  *  *  * 

"With  the  decision  declaring  the  invalidity  of  this  claim  to  the  land  in  con- 


28 


troversy,  all  obstacles  previously  interposed  to  the  presentation  of  the  claim  of 
the  heirs  of  Chart  rand,  and  to  proofs  to  establish  it,  were  removed.      *      * 

'•It  follows  that  the  patent  issued  by  the  United  States  taking  effect  as  of 
the  date  of  such  settlement,  (1835,)  overrides  the  patent  of  the  State  of  Mis- 
souri to  McPherson,  (in  1849,)  even  admitting  that  but  for  the  settlement,  the 
land  would  have  been  open  to  selection  by  the  State  of  Missouri. 

If  B,  owning  a  residuary  title  in  land,  when  the  present 
estate  and  right  to  present  possession  rests  in  A  until  A 
shall  die,  and  B,  during  A's  life  should  bring  ejectment 
against  A,  would  any  judgment  that  could  in  any  court  be 
rendered  in  such  a  case  preclude  B's  title  after  A  should 
die,  and  B's  title  come  into  life  ?  The  reservation  preclud- 
ing Beaubien  from  buying  or  obtaining  his  property  while 
it  should  last  has,  since  1835,  ceased,  or  is  about  to,  and  the 
Beaubien  right  to  the  property  come  into  force,  cutting  off 
all  subsequently  accruing  equitable  titles. 

As  the  court  in  the  Peters  case  was  not  invested  with 
jurisdiction  to  have  passed  on  Beaubien's  residuary  title,  if 
it  had  attempted  to,  it  is  a  matter  of  little  consequence 
whether  it  attempted  to  or  not,  but  as  a  matter  of  fact  it  did 
not. 

The  suit  before  it  was,  as  before  stated,  one  of  law  purely, 
an  action  of  ejectment.  No  one  of  legal  intelligence  ever 
yet  thought  of  maintaining  a  suit  in  ejectment  against  the 
Government  on  an  unentered  pre-emption  right,  as  all  rights 
that  Beaubien  then  had  or  might  thereafter  acquire,  under 
these  laws  of  1813  and  1816,  were  at  that  time,  as  his  entry 
had  been,  under  the  law  of  June  19, 1834. 

What  his  rights  were  under  this  law  of  June  19,  1834, 
was  all  that  the  court  was  in  that  case  invested  with  jurisdic- 
tion to  hear  or  determine,  or  in  any  way  that  it  attempted  to 
hear  or  determine.  In  Illinois  then,  as  yet,  the  distinction 
between  law  and  equity  prevailed  in  all  the  rigor  that  ex- 
isted a  hundred  years  ago  in  England.  There  was  not  then, 
and  is  not  yet,  any  blending  of  the  two  jurisdictions  in  one 
and  the  same  suit,  or  before  one  and  the  same  court,  as  now 
prevails  in  some  of  the  States  having  codes. 

The  claimed  law  title  on  which  this  action  of  ejectment 


29 

was  based  was  a  final  Land  Office  certificate  under  the  pre- 
emption law  of  June  19,  1834.  That  law  had  authorized 
pre-emptive  rights  only  on' tracts  that  at  its  date  were  unre- 
served, as  was  by  that  case  decided,  which  did  not  and  could 
not  have  included  this,  as  in  1824  it  had  been  reserved. 
That  act  only  required  the  settler  to  have  been  in  possession 
on  the  day  this  act  was  passed,  to  wit,  June  19,  1834,  and 
that  he  should  have  cultivated  some  portion  thereof  in  the 
year  1833 — cultivation  in  any  other  year  than  1833,  and 
residence  on  any  other  da}7  than  June  19,  1834,  to  give  pre- 
emptive rights  to  purchase  the  tract  under  the  law  that  en- 
try was  based  on,  would  not  have  been  worth  a  cankered 
pin  or  a  beggar's  sleeve.  Nothing  else  than  these  sole  facts, 
and  whether  this  land  was  on  the  19th  day  of  June,  1834, 
reserved,  was  properly  before  that  court. 

No  reference  was  in  that  case  made  from  beginning  to 
end  of  the  1813  or  1816  pre-emptive  laws  for  Illinois; 
no  entry  having  been  made  under  those  laws,  the  case 
being  one  of  law  only.  No  question  arising  under  these 
laws  of  1813  and  1816,  under  which  we  now  claim,  was  or 
could  have  been  considered  in  that  case. 

The  case  only  decided  that  this  purchase  under  this  1834 
law  was  void,  and  gave  Beaubien  no  title,  and  there  being 
before  that  court  no  other  question  that  it  did  or  could  de- 
cide except  the  effect  of  this  void  purchase  and  entry,  it  does 
not  in  any  respect  have  any  effect  on  what  the  Beaubien 
prior  equitable  title  created  by  the  1813  law,  then  resting 
in  abeyance  and  in  equity,  that  could  not  then  be  consid- 
ered in  an  action  of  law,  and  is  now  to  revive,  or  has  re- 
vived ;  and  these  rights  were  entirely  unaffected  by  that 
decision,  save  and  except  as  that  decision,  and  the  one  relat- 
ing to  the  cancellation  of  this  entry,  conclude  the  Government 
from  now  claiming  that  this  tract  of  land  was  included  in 
the  proclamation  for  sale  of  1835,  and,  therefore,  that  the 
time  for  entry  by  this  decision  is  fixed  to  not  have  as  yet 
expired,  and,  therefore,  must  now  be  respected. 


30 

That  entry  and  purchase  having  been  void,  for  the  rea- 
sons: first,  because  the  land  was  not  at  the  date  of  the  en- 
try and  purchase  subject  to  sale,  being  then  reserved;  sec- 
ond, because  the  land  was  reserved  at  the  date  of  the  act  of 
June  19,  1834.  It  left  Beaubien's  pure,  equitable  rights  in 
the  land  the  same  as  though  the  1834  law  had  never  been 
made,  or  no  right  had  been  attempted  to  be  asserted  under 
it.  It  left  this  case  the  same  as  though  after  1824  no  at- 
tempt had  been  made  by  Beaubien  to  buy  under  either 
the  1830  or  1834  law,  and  this  decision  had  never  been 
made. 

Now,  an  entry  before  a  register  and  a  receiver  not  au- 
thorized by  a  law  of  Congress  is  a  nullity.  A  settler's  title, 
as  before  stated,  comes  from  the  laws  of  Congress  and  a 
settlement  under  them;  and,  as  before  stated,  these  early 
laws  had  provided  for  this  title  to  exist  as  sacredly  before 
entry  as  afterwards,  until  the  time  fixed  for  entry  had  ex- 
pired, which  has  not  yet  taken  place.  The  entry  is  only 
evidence  of  prior  compliance  of  the  settler  with  the  law, 
and  his  title  never  starts  from  the  date  of  his  entry,  but 
from  the  date  of  his  settlement.  This  prior  equitable  title 
having  revived,  that  in  equity  passed  into  our  father  April 
29,  1816,  and  being  now  in  force  and  older  than  all  other 
Claimed  equitable  titles,  the  Government  being  a  trustee  for 
it  alone,  we  ask  to  have  the  land  granted  to  us. 

Another  point  made  by  our  Judge  is,  that  this  land  has 
already  been  confirmed  by  Congress  to  Chicago.  If  so, 
then  what  more  does  Chicago  need?  And  why  has  she  ap- 
plied for  this  grant,  and  why  should  it  be  made  ? 

Another  point  contained  in  this  premature  delivery  of 
our  Judge,  is  in  substance,  that  the  equitable  title  of  this 
land  passed  to  Chicago  in  1839,  but  the  legal  title  still 
remains  in  the  Government.  Did  Beaubien's  settlement 
begin  before  or  after  that  date,  and  was  he  not  then  still 
on  this  land?  Assuming  that  what  you  state  is  true,  we 
would  like  to  know  when  the  Government  became  a 


31 

trustee  for  a  second  or  younger  equitable  title  in  lands  of 
which  it  retains  the  fee  or  legal  title.  Please  instance  the 
case. 

Do  you  mean  to  be  understood  also  that  all  the  equitable 
title  in  1839,  or  since,  has  passed  to  Chicago?  Was  not  that 
dedication,  assuming  all  that  can  be  claimed  for  it,  limited 
to  the  term  or  period  of  time  that  the  land  should  remain 
vacant  of  buildings;  and  has  not  the  time  that  it  can  be  pro- 
fitably used  in  that  way  already  expired?  Pray  tell.  If 
not,  why  is  a  sale  being  talked  of  for  a  depot? 

Did  Congress  receive  anything  from  Chicago  in  1839  to 
leave  this  open  ?  If  so,  name  the  sum.  Did  she  receive 
more  or  less  than  she  otherwise  would  have  received  from 
the  1839  sales  by  leaving  it  open  ?  Has  Chicago  received 
less  benefit  from  this  space  than  the  amount  she  has  ex- 
pended on  it  ?  If  so,  wherein  and  how  ?  Was  not  this 
space  left  open  to  appease  the  indignation  of  Chicago's  citi- 
zens against  the  outrage  of  that  date  against  Beaubien's 
rights,  and  to  make  it  more  possible  to  sell  in  Chicago,  and 
save  the  necessity  of  adjourning  and  proceeding  to  Detroit  or 
New  York  to  make  the  sale?  Let  the  correspondence  be- 
tween Burchard  and  the  Secretary  of  War  answer.  Does  the 
bribery  fund  taken  out  of  what  was  either  Beaubien's  or 
the  Government  give  Chicago  any  superior  equities  now  ? 
Did  not  the  Chicago  press  of  that  date  expressly  state  that 
they  would  not  pretend  to  claim  this  land  if  it  was  to  be  a 
question  between  them,  and  the  first,  best  equitable  right  of 
the  old  settler,  Beaubien  ?  Consult  the  files  of  the  Chicago 
Daily  American,  now  in  the  possession  of  the  Chicago  Even- 
ing Journal,  or  come  around  and  read  our  sworn  copies. 

If  it  would  have  been  dishonorable  then  for  Chicago  to 
ask  this  land,  if  their  asking  was  to  prevent  Beaubien  get- 
ting it,  is  it  any  more  honorable  for  her  to  ask  any  part  of 
it  now,  or  the  Government  to  donate  it,  and  deny  Beaubien's 
widow  and  children  ? 

Has  Chicago  had  no  aid  out  of  funds  provided  and  set 
apart  by  Congress?  Let  the  Canal  Fund  answer.  Is  there 


32 

any  reason  now  why  Congress  should  surrender  her  title  to 
Chicago,  any  more  than  why  Chicago  should  surrender  hers 
to  the  United  States  ?  That  is  a  question  for  Congress  to 
answer ;  but  as  to  the  Beaubiens,  the  case  is  otherwise ;  as 
for  them,  she  is  a  trustee  and  not  an  absolute  owner  in  her 
own  right ;  both  at  law  and  equity,  as  is  the  case  between 
her  and  Chicago. 

WM.  H.  STANDISH, 
Of  Chicago,  Attorney  for  the  Beaubien  Heirs  and  Widow. 


We  res 
vision  j6f 

jl  Lane 
B. 


APPENDIX. 


bectfully  call  the  attentionlof  Congress  to  th 


eneral  Williamsop,  the  Commissioner  of  the 

le  application  of  Th 


Office,  in  this  matter  of 


ine  to  locate  this 


tion  6$swriere  this  title  is,  if  n 

we  hav^Cseen,  and  ask  them  1 

having-'anVquitable  title  in  it 

unless  this  nuid  belongs  to 

tion  when  tha\  scrip  was  file/1,  it  belongs  to  that  scrip. 


the  mo\t  able  pres 
in  the  Beau 
read  it;  but 
e  Valentine 


ti 


in  heirs 
e  Beau 
e  fails 


aubiens,  or  was  a  res 


de- 


mas 
nta- 
that 
iens 
but 
rva- 


AFFIDAYIT  OF  E.  Dx.  TAYLOR. 

STATE  OF  ILLINOIS,      \ 
Countt/  of  Cook,  j 

Personally  appeared  before  the  undersigned,  a  notary  pub- 
lic within  and  for  said  county,  E.  D.  Taylor,  who,  being  first 
duly  sworn,  makes  oath  and  says:  That  he  will  be  seventy- 
three  years  of  age  October  eighteenth,  eighteen  hundred  and 
seventy -seven. 

That  his  memory  of  past  events  is  strong  and  clear;  that 
he  resides  in  the  City  of  Chicago  and  county  aforesaid,  but 
spends  a  good  deal  of  his  time  at  or  about  Mendota  and  near 
Lasalle,  Illinois,  and  that  he  owns  real  estate  situated  in  said 
City  of  Chicago. 

Affiant  states  that  he  was  the  first  receiver  of  the  north- 
eastern land  district  of  Illinois,  and  that  his  headquarters 
as  such  receiver  were  at  Chicago,  Illinois,  and  that  the  first 
public  sales  of  any  public  lands  located  in  what  is  now  Chi- 
cago, Illinois,  and  the  country  continguous  thereto,  com- 
menced at  Chicago,  Illinois,  on  the  fifteenth  day  of  June, 
eighteen  hundred  and  thirty-five,  and  not  before  that  date; 
3 


34 

and  that  said  lands  had  not  been  advertised  to  be  sold  before 
that  date  at  public  sale,  and  that  said  sales  of  said  lands  were 
made  by  this  affiant  as  the  receiver  of  the  land  district  afore- 
said on  and  after  June  fifteenth,  eighteen  hundred  and  thirty- 
five,  at  Chicago,  Illinois,  in  connection  with  the  register  of 
said  land  district. 

Affiant  further  states  that  on  the  fifth  day  of  February, 
A.  D.  one  thousand  eight  hundred  and  thirteen,  the  Con- 
gress of  the  United  States  of  America  passed  a  certain  act  en- 
titled "An  act  giving  the  right  of  pre  eruption  in  the  pur- 
chase of  lands  to  certain  settlers  in  the  Illinois  Territory,'* 
which  act  is  to  be  found  in  the  second  volume  of  the  United 
States  Statutes-at-Large,  on  pages  797-798,  which  act  affiant 
is  informed  and  believes  was  never  repealed,  except  as  it  was 
modified  by  subsequent  legislation  on  the  subject,  and  that 
said  act  is  made  a  part  of  this  affidavit  by  reference  to  the 
same  as  if  incorporated  into  it  verbatim. 

That  on  the  twelfth  day  of  April,  one  thousand  eight  hun- 
dred and  fourteen,  the  aforesaid  act,  without  the  change  of 
a  word  or  dot,  was  extended  to  a  part  of  the  State  of  Louisi- 
ana and  to  the  Territory  of  Missouri,  as  will  be  seen  by  ref- 
erence to  the  United  States  Statutes-at-Large,  volume  three, 
page  one  hundred  and  twenty-two.  That  in  eighteen  hun- 
dred and  nineteen  in  matters  that  arose  in  Missouri  Terri- 
tory, that  this  law  was  construed  by  the  Attorney  General 
of  the  United  States  as  creating  in  the  settler  from  the  date 
of  his  settlement  (where  he  had  settled  after  the  date  of  the 
extension  of  said  law  to  Missouri)  a  vested  right  to  the  tract 
which  he  had  settled  on,  which  made  it  impossible  for  Con- 
gress thereafter  to  reserve  it,  notwithstanding  that  at  that 
time  no  entry  of  the  settlement  right  had  been  made  at  the 
Land  Office,  as  affiant  understands  said  decision;  the  same 
is  to  be  found  in  the  first  volume  of  the  Attorney  General's 
Opinions  at  page  two  hundred  and  ninety-one,  and  to  which 
reference  is  made. 

The  time  given  to  the  settler  under  the  aforesaid  act  of 
February  fifth,  one  thousand  eight  hundred  and  thirteen, 


35 

in  which  to  first  enter  his  land  at  the  Land  Office  as  a  claim- 
ant under  the  aforesaid  law,  did  not  expire  until  two  weeks 
before  the  land  was  to  be  offered  at  public  sale,  and  that 
within  that  time  for  a  failure  to  make  entry  or  the  first  pay- 
ment, it  was  provided  in  and  by  said  law  that  the  settlers' 
rights  in  his  land  should  not  be  forfeited.  The  language  of 
said  law  on  this  point  being  in  the  words  following,  to  wit: 

"  Provided,  That  all  lands  to  be  sold  under  this  act  shall 
be  entered  with  the  register  at  least  two  weeks  before  the 
time  of  the  public  sales  in  the  district  wherein  the  land  lies, 
and  every  person  having  a  right  of  preference  in  becoming 
the  purchaser  of  a  tract  of  land  who  shall  fail  so  to  make 
his  entry  with  the  register  within  the  time  prescribed,  his 
right  shall  be  forfeited, 'and  the  land  by  him  claimed  shall 
be  offered  at  public  sale  with  the  other  public  lands  in  the 
district  to  which  it  belongs." 

Within  that  time  that  is  more  than  two  weeks  before  June 
fifteenth,  eighteen  hundred  and  thirty-five,  the  first  time  ap- 
pointed for  the  public  sale  of  any  public  lands  in  Chicago,  Illi- 
nois, or  that  were  located  there.  General  John  Baptiste  Beau- 
bien  (whose  name  was  sometimes  written  Jean  Baptiste  Beau- 
bien,  and  at  others  Jean  Baptist  Beaubien)  came  to  the 
register  and  Receiver's  office  of  the  aforesaid  land  district 
then  in  Chicago,  and  within  two  squares  of  the  land  heft- 
after  described,  and  brought  with  him  his  neighbors  and  the 
oldest  settlers  then  of  that  locality,  and  the  said  Beaubieu 
and  these  old  neighbors  and  old  settlers  then  and  there  offered 
to  swear,  that  for  twenty-three  years  the  home  of  the  said 
Beaubien  had  been  and  was  then  on  the  southwest  frac- 
tional quarter  of  section  ten,  township,  number  thirty-nine, 
north  range,  fourteen  east  of  the  third  principal  meridian, 
in  the  county  of  Cook  and  State  of  Illinois. 

The  said  Beaubien,  and  the  said  witnesses  by  him  pro- 
duced then  and  there  before  the  said  register  and  receiver, 
also  offered  to  swear  that  a  house  was  built  on  the  aforesaid 
fractional  quarter  section  of  land  several  years  before  the 
war  of  eighteen  hundred  and  twelve,  and  was  occupied  up 


36 

to  shortly  before  the  breaking  out  of  said  war,  and  that  a 
piece  of  ground  on  said  fractional  quarter  section  of  land  in 
connection  with  said'  house,  and  by  the  owner  and  occupier 
thereof,  was  cultivated  during  each  of  said  years,  when  the 
owner  and  the  occupier  of  said  house  sold  and  conveyed  the 
same,  together  with  said  cultivated  piece  of  ground,  to  the 
said  General  Beaubien,  and  placed  him  in  the  actual  pos- 
session thereof,  since  which  time  the  said  General  Beaubien 
had  retained  said  house,  and  actually  lived  on  said  laud 
from  year  to  year  and  made  it  his  home,  and  that  he  actually 
occupied  it  before  August,  eighteen  hundred  and  twelve,  in 
person,  and  cultivated  said  piece  of  ground  before  that  date; 
that  from  the  last  date  until  the  year  one  thousand  eight 
hundred  and  nineteen  or  thereabouts,  the  said  General  Beau- 
bien was  a  fur  agent  and  trader  among  the  Indians,  and 
while  this  business  had  caused  him  to  be  absent  at  intervals 
between  those  years  at  Milwaukee  and  the  region  of  Green 
Bay,  in  the  former  Territory  of  Illinois,  the  wife  and  family 
of  the  said  General  Beaubien  had  at  times  during  such  ab- 
sence remained  on  this  land  to  await  his  return,  and  that 
Chicago  during  that  period  of  time  was  the  home  of  the 
said  General  Beaubien,  and  that  the  said  General  Beaubien 

offered  to  swear  that  he  did  not  establish  for  'himself  any 

* 

otfcfer  home  after  the  year  eighteen  hundred  and  twelve,  and 
these  witnesses  offered  to  swear  that  this  was  true,  and  that 
Chicago  was  where  his  wife's  relatives  had  been  living 
during  that  period,  and  that  it  was  where  she  had  been 
reared,  and  that  it  was  the  place  said  Beaubien  became  ac- 
quainted with  her,  as  was  currently  understood.' 

The  said  Beaubien  and  the  said  witnesses  also  offered  to 
swear  that  after  the  spring  of  eighteen  hundred  and  sixteen 
said  Beaubien  had  expended  for  improvements  on  said  lands, 
over  fifteen  times  the  stipulated  price  the  Government  had 
previously  offered  to  receive  from  him  for  said  lands,  any 
time  after  their  survey,  and  two  weeks  or  more  prior  to  the 
time  that  should  be  fixed  for  their  sale,  and  this  stipulated 
purchase  price  that  had  been  fixed  for  the  sale  of  said  lands 


37 

to  said  Beaubien  by  the  Government,  to  include  said  expen- 
ditures by  him  on  said  land,  with  the  necessary  and  usual 
proof  of  compliance  with  the  terms  of  said  law,  he  then  and 
there  tendered  to  the  said  register  and  receiver,  and  re- 
quested them  to  accept  the  same  and  to  issue  to  him  the  ne- 
cessary and  usual  papers,  which  the  Government  had  prom- 
ised him,  entitling  him  to  a  patent  for  the  aforesaid  fractional 
quarter  section  of  land. 

At  the  same  time,  by  the  same  witness,  the  said  Beaubien 
offered  to  prove  that  he  had  complied  with  all  of  the  things 
required  by  the  pre-emption  law  of  June  nineteenth,  eigh- 
teen hundred  and  thirty-four,  and  also  tendered  his  money 
under  that  law  to  said  register  and  receiver  for  said  frac- 
tional quarter  section  of  land,  and  requested  that  the  neces- 
sary and  usual  final  papers  from  said  officers  be  then  and 
there  issued  to  him  for  the  aforesaid  fractional  quarter  sec- 
tion of  land.  The  said  register  and  this  affiant  then  con- 
sulted together,  and  came  to  the  conclusion  that  the  said 
General  Beaubien  had  complied  fully  with  all  of  the  things 
that  had  been  prescribed  by  the  said  pre-emption  law  of 
eighteen  hundred  and  thirteen,  and  also  that  he  had  fully 
complied  with  all  of  the  things  required  by  the  said  pre- 
emption law  of  eighteen  hundred  and  thirty-four,  but  owing 
to  the  fact  that  the  Government  had  some  buildings  on  a 
portion  of  said  fractional  quarter  section  of  land,  they  deemed 
it  prudent  and  cautious  for  them  to  consult  with  the  author- 
ities at  Washington,  D.  C.,  before  taking  any  action  in  the 
premises,  and  we  made  this  conclusion  known  to  General 
Beaubien.  'Soon  General  Beaubien,  very  excited  and  in- 
dignant, came  and  stated  to  the  said  register  and  this  affiant, 
words  to  this  effect :  "  See  here,  my  land  is  advertised  for 
sale;  you  are  instructed  to  sell  it;  if  you  take  time  to  write 
to  Washington  you  will  rob  me  of  my  land."  The  said  reg- 
ister and  receiver  then  looked  at  their  instructions  and  found 
to  their  satisfaction  that  what  General  Beaubien  had  stated 
was  true.  The  Department  at  Washington  had  seemingly 
been  particular  to  point  out  to  them  every  section  of  land 


38 

that  belonged  to  the  canal  trustees,  and  in  which  Indian 
rights  existed,  and  even  the  land  that  abutted  this  piece  or 
fractional  quarter  section  on  the  west,  and  also  the  tract  that 
adjoined  it  on  the  south,  and  had  directed  all  these  lands  not 
to  be  sold,  but  the  said  fractional  quarter  section  of  land 
in  question  it  had  directed  to  be  offered  at  public  sale  unless 
it  should  be  pre-empted  within  the  time  provided  by  law  for 
pre-emption  rights  to  be  entered. 

It  is  affiant's  opinion  that  at  that  time  the  pre-emptive 
rights  of  the  said  Beaubien  in  the  said  fractional  quarter 
section  of  land,  by  the  best  judges  in  and  about  Chicago, 
were  then  estimated  to  be  worth  not  less  than  fifty  thousand 
dollars,  at  least  they  were  supposed  to  be  very  valuable,  and 
the  said  register  and  receiver  felt  that  they  had  no  right  to 
hazard  them,  and,  therefore,  they  concluded  to  take  legal 
advice  nearer  at  hand  than  Washington,  D.  C.  About  that 
time  Mr.  Baker,  the  United  States  District  Attorney  for  Il- 
linois, happened  to  be  in  Chicago  at  the  office  of  the  said 
register  and  receiver,  and  they  submitted  the  whole  matter 
to  him,  turning  over  to  him  everything.  He  made  careful 
examination,  read  over  the  law,  and  took  time  to  consider 
the  matter,  when  he  advised  us  that  both  the  law  and  our 
instructions  made  it  our  duty  to  let  General  Beaubien  pre- 
empt this  laud,  and  that  it  made  no  difference  to  us  whether 
the  fort  and  light-house  were  on  a  part  of  said  land  or  not ; 
that  it  was  our  duty  to  follow  the  law,  whether  it  hurt  or  ben- 
efited the  United  States  Government,  and  thafcthelaw  made 
it  our  duty  to  let  said  General  Beaubien  pre-empt  this  land. 
Although  the  said  United  States  District  Attorney  enjoyed 
the  reputation  of  being  a  good  lawyer,  and  it  was  his  duty, 
as  we  understood,  to  advise  all  United  States  officials  in  his 
district,  yet,  before  acting  on  his  advice,  we  took  that  of  the 
Hon.  Sidney  Breese,  who  is  now  one  of  the  Supreme  Court 
Judges  of  Illinois,  and  even  at  that  day  enjoyed  the  reputa- 
tion of  being  an  eminent  lawyer. 

At  about  that  time  he  happened  to  be  in  Chicago,  and  at 
the  offices  of  the  said  register  and  receiver,  and  they  sub- 


39 

mitted  everything  to  him  for  advice  pertaining  to  the  said 
matter  the  same  as  they  had  to  the  said  United  States  Dis- 
trict Attorney,  and  they  received  from  him  the  same  advice 
that  they  had  received  from  said  District  Attorney. 

Said  affiant  and  said  register  then  concluded  to,  and  did 
permit,  said  General  John  Baptiste  Beaubien  to  pre-empt 
said  fractional  quarter  section  of  land.  They  had  blanks 
that  had  been  furnished  them  by  the  Department  at  Wash- 
ington, D.  C.,  for  the  taking  of  proof,  showing  a  compliance 
with  the  pre-emption  act  of  June  nineteenth,  one  thousand 
•eight  hundred  and  thirty-four,  and  for  the  certificates  to  be 
issued  by  said  register  and  receiver  under  said  act  to  the 
settler,  and  they  had  no  blanks  for  use  under  the  said  act  of 
February  fifth,  one  thousand  eight  hundred  and  thirteen, 
and  they  supposed  that  it  made  no  difference  under  which 
of  said  acts  they  should  take  proof;  they,  therefore,  on  the 
twenty-eighth  day  of  May,  A.  D.  eighteen  hundred  and 
thirty-five,  neglected  and  declined  to  take  all  proof  then  and 
there  offered  by  the  said  Beaubien,  showing  that  he  had 
fully  complied  with  the  aforesaid  act  of  February,  A.  D. 
one  thousand  eight  hundred  and  thirteen,  and  they  took 
proof  and  issued  certificates  to  said  Beaubien  for  said  frac- 
tional quarter  section  of  land  under  the  said  act  of  June 
nineteenth,  eighteen  hundred  and  thirty-four,  and  under 
said  act  they  accepted  payment  in  full  for  the  aforesaid  frac- 
tional quarter  section  of  land  from  the  said  General  Beau- 
bien, and  then  and  there  the  said  fractional  quarter  section 
of  land  was  entered  on  the  record  books  of  the  said  register 
as  sold  to  the  said  Beaubien,  and  receipts  were  then  and 
there  issued  and  delivered  by  the  said  register  and  receiver 
to  the  said  Beaubien,  of  which  the  following,  according  to 
the  best  of  said  affiant's  recollection,  are  true  copies,  to  wit: 

£No.  6.]  Pre-emption  Act,  June  19,  1834. 

LAND  OFFICE  AT  CHICAGO,  ILLINOIS, 

May  28,  1835. 
Received  of  John  Baptist  Beaubien,  of  Cook  County,  Illi- 


40 

nois,  the  sura  of  ninety-four  dollars  and  sixty-one  cents,, 
being  in  full  payment  for  the  the  southwest  fractional  quar- 
ter, of  section  number  ten,  in  township,  number  thirty-nine, 
north  of  range  number  fourteen,  east  of  the  third  principal 
meridian,  containing  seventy-five  acres  and  sixty-nine  hun- 
dredths  of  an  acre,  at  the  rate  of  $1.25  per  acre  Bank  Mich., 
paper. 

E.  D.  TAYLOR, 

Receiver. 

[No.  6.]  LAND  OFFICE  AT  CHICAGO,  ILLINOIS, 

May  28,  1835. 

It  is  hereby  certified  that  in  pursuance  of  law,  John  Bap- 
tiste  Beaubien,  of  Cook  County,  State  of  Illinois,  on  this  day 
purchased  of  the  register  of  this  office  the  lot  or  southwest 
fractional  quarter,  of  section  number  ten,  in  township  num- 
ber thirty-nine,  north  of  range  fourteen  east,  containing 
seventy-five  acres  and  sixty-nine  hundredths  of  an  acre  at 
the  rate  of  $1.25  per  acre,  amounting  to  $94.61,  for  which 
the  said  John  Baptiste  Beaubien  has  made  payment  in  full 
as  required  by  law. 

Now,  therefore,  be  it  known  that  on  presentation  of  this 
certificate  to  the  Commissioner  of  the  General  Land  Office,, 
the  said  John  Baptiste  Beaubien  shall  be  entitled  to  a  patent 
for  the  lot  above  described. 

JAMES  WHITLOCK, 

Register. 

Said  affiant  further  states,  that  said  proof  offered  that  the 
said  Jean  Baptiste  Beaubien  had  made  his  home  on  this 
fractional  quarter  section  of  land  since  prior  to  the  war  of 
eighteen  hundred  and  twelve,  and  had  complied  with  all  of 
the  things  required  by  said  pre-emption  law  of  eighteen 
hundred  and  thirteen,  was  credited  by  the  said  register  and 
said  receiver,  and  that  it  showed  a  full  and  perfect  com- 
pliance by  the  said  Beaubien  with  the  said  act  of  February 
fifth,  eighteen  hundred  and  thirteen,  and  also  a  full  compli- 


41 

ance  with  the  amendment  to  said  act  of  April  twenty-ninth, 
eighteen  hundred  and  sixteen,  and  that  said  proof  was  offered 
within  the  time  required  by  said  acts  to  have  it  enure  back 
to  the  date  of  the  latter  act;  and  that  no  fault  or  negligence 
is  imputable  to  the  said  Beaubien  because  it  was  not  taken, 
but  such  fault  or  negligence,  if  any,  rests  on  the  United 
States  Government  and  on  their  duly  accredited  agents,  the 
said  register  and  receiver. 

Said  affiant  further  states,  that  the  time  for  proving  up 
any  pre-emption  right,  if  any  had  existed  in  any  other  party 
to  pre-empt  said  fractional  quarter  section  of  land  or  any 
portion  thereof,  expired  under  the  said  act  of  February  fifth, 
eightee^  hundred  and  thirteen,  on  the  first  day  of  June, 
eigl"xsen  hundred  and  thirty-five;  that  the  said  affiant  re- 
mained as  the  said  receiver  in  the  said  Land  Office  until 
past  the  date  last  stated,  and  until  the  land  sales  that  began 
in  said  land  district,  at  said  Land  Office,  on  the  fifteenth 
day  of  June,  eighteen  hundred  and  thirty-five,  were  com- 
pleted, and  affiant  states  that  no  person  other  than  the  said 
General  Beaubien,  either  before  the  said  first  day  of  June, 
eighteen  hundred  and  thirty -five  or  thereafter,  made  any  claim 
to  the  said  receiver  that  he  had  any  right  to  pre-empt  the 
said  fractional  quarter  section  of  land,  or  any  portion  thereof, 
nor  did  any  person  other  than  the  said  General  Beaubien 
offer  any  proof  of  such  a  right,  or  receive  from  the  said  re- 
ceiver a  receiver's  certificate  of  pre-emption  payment  for 
said  land,  or  any  portion  thereof. 

E.  D.  TAYLOR. 

Sworn  to  before  me  and  subscribed  in  my  presence,  this 
thirteenth  day  of  September,  A.  D.  1877. 

L.  F.  CUMMINGS, 
[SEAL]  Notary  Public. 

E.  D.  Taylor,  of  Illinois,  is  an  old  and  greatly  esteemed 
citizen  of  that  State.  His  statements  are  entitled  to  credit. 

W.  N.  MORRISON. 


42 
AFFIDAVIT  OF  DAVID  McKEE. 

STATE  OF  ILLINOIS,         1 

County  of  Kane,  j     ' 

David  McKee,  being  first  duly  sworn,  makes  oath  and 
says  that  he  is  now  aged  near  seventy-eight  years,  and  that 
he  now  resides  near  the  City  of  Aurora,  in  the  aforesaid 
county,  and  that  in  an  early  day  in  eighteen  hundred  and 
twenty-two,  he  went  to  the,  now  Chicago,  Illinois,  to  reside, 
and  was  the  blacksmith  of  the  place,  and  located  at  or  near 
old  Fort  Dearborn. 

Affiant  not  then  being  able  to  speak  the  Indian  language, 
did  not  fully  post  himself  as  to  who  had  or  had  not  been 
living  at  said  place  between  the  year  eighteen  hundred  and 
twelve  and  the  year  eighteen  hundred  and  twenty-two,  when 
affiant  first  went  to  said  place  to  live.  Affiant,  however, 
does  recollect  that  when  he  went  to  said  place  to  live,  that 
there  was  then  still  standing  east  of  old  Fort  Dearborn, 
south  and  west  of  the  then  Chicago  river,  an  old  house  then 
bearing  the  appearance  of  having  stood  there  some  twelve 
or  fifteen  years,  or  perhaps  longer,  which  old  house  was  then 
in  use  as  a  stable,  and  from  the  best  information  and  belief 
that  affiant  has,  the  said  old  house  had  then  stood  on  said 
land  that  long,  and  this  old  house  was  on  the  fractional 
quarter  section  of  land  that  was  east  of  the  now  State  street 
in  Chicago,  and  north  of  Madison  street  in  said  city,  and 
south  of  the  Chicago  river. 

DAVID  McKEE. 

Sworn  and  subscribed  to  before  me  this  first  day  of  Jan- 
uary eighteen  hundred  and  seventy-eight. 

LYMAN  W.  FOSTER, 
[SEAL.]  Notary  Public. 


43 
AFFIDAVIT  OF  JEAN  B.  LETENDERE. 

STATE  OF  KANSAS,        1 
County  of  Shawnee,  J 

Jean  B.  Letendere,  being  first  duly  sworn  makes  oath  and 
says  that  he  resides  near  the  City  of  Silver  Lake,  in  said 
county;  that  he  is  over  eighty-three  years  of  age,  and  that 
from  in  the  fall  of  eighteen  hundred  and  fifteen  until  after 
the  year  eighteen  hundred  and  thirty-five  he  resided  in  and 
about  what  is  now  Chicago,  Illinois,  and  in  the  fall  of  eigh- 
teen hundred  and  fifteen  affiant  entered  into  the  employment 
of  Colonel  John  B.  Beaubien.,  of  that  place,  and  remained  in 
his  employment  the  most  of  the  time  until  the  year  eighteen 
hundred  and  thirty-six;  and  that  in  the  fall  of  eighteen  hun- 
dred and  fifteen,  and  for  years  thereafter,  affiant  boarded 
much  of  his  time  in  the  family  of  the  said  Beaubien,  who  is 
now  deceased. 

Affiant  states  that  at  the  time  in  the  fall  of  eighteen  hun- 
dred and  fifteen,  that  affiant  began  to  work  for  the  said  Beau- 
bien. and  live  in  his  family;  the  said  Beaubien  was  then  re- 
siding in  a  house  near  the  then  ruins  of  eld  Fort  Dearborn, 
and  near  where  it  was  rebuilt  about  the  month  of  July  or  Au- 
gust, eighteen  hundred  and  sixteen,  the  said  house  being 
then  a  few  hundred  feet  cast  and  south  of  said  ruins  of  a 
former  fort,  as  it  was  stated,  and  on  that  tract  of  land  which 
after  survey  came  to  be  known  and  described  as  the  south- 
west fractional  quarter  of  section  ten,  township  number 
thirty-nine,  north  range  fourteen,  east  of  the  third  principal 
meridian,  and  in  the  now  City  of  Chicago,  County  of  Cook, 
and  in  State  of  Illinois,  and  north  of  what  is  now,  or  was 
when  affiant  lived  in  Chicago,  known  as  Madison  street,  and 
east  of  State  street  and  south  of  the  Chicago  river. 

At  the  time  that  affiant  entered  the  employment  of  the 
said  Beaubien  in  the  year  eighteen  hundred  and  fifteen,  and 
then  began  to  board  and  live  in  the  family  of  the  said  .Beau- 
bien, then  living  and  residing  in  a  house  on  said  land,  affiant 
learned  from  the  said  Beaubien  and  wife,  and  from  the  citi- 


44 

zens  generally  of  that  neighborhood  and  vicinity,  that  the 
said  Beaubien  had  purchased  said  house  from  the  rightful 
owner  thereof  in  the  year  eighteen  hundred  and  twelve,  or 
at  about  the  time  of  the  breaking  out  of  the  then  late  war; 
and  that  the  said  Beaubien  had  resided  therein  a  portion  of 
each  year  since  that  time,  and  had  each  year  cultivated  a 
patch  of  ground  for  garden,  &c.,  in  and  around  said  house, 
and  on  said  tract  of  land,  and  this  seemed  to  be  a  generally 
conceded  fact  in  and  about  that  region  at  that  date. 

As  affiant  learned  in  the  same  way  as  he  learned  about 
the  facts  of  the  purchase  of  said  house,  he  also  learned  that 
the  same  had  first  been  built  about  the  year  eighteen  hun- 
dred and  four,  and  occupied  the  most  of  the  time  from  that 
date  as  a  private  residence,  up  to  eighteen  hundred  and 
twelve,  as  well  as  since  eighteen  hundred  and  twelve,  and 
affiiaut  says  that  in  eighteen  hundred  and  fifteen  the  said 
house  bore  the  evidence  of  age,  and  looked  then  as  though 
it  had  been  erected  ten  or  more  years  previously  to  the  year 
eighteen  hundred  and  fifteen. 

Affiant  states  that  in  the  same  way  that  he  learned  the 
before  mentioned  facts,  he  also  learned  that  Jossettie  Beau- 
bien, the  second  and  the  then  wife  of  the  said  John  B.  Beau- 
bien, was  at  the  time  the  said  house  had  been  purchased  by 
the  said  John  B.  Beaubien,  then  living  on  an  adjoining 
fractional  quarter  section  of  land,  and  that  in  said  neighbor- 
hood she  had  been  reared,  and  that  in  said  neighborhood 
her  family  relatives  were  and  had  been  residing,  and  for 
many  years  thereafter  continued  to  reside,  and  that  the 
said  John  B.  Beaubien  in  the  year  eighteen  hundred  and 
twelve  purchased  said  house  for  a  home,  and  that  soon  after 
said  purchase  his  marriage  to  the  said  Jossettie  Beaubien, 
whose  name  before  marriage  was  Jossettie  Lafromboise  fol- 
lowed, when  they  went  to  living  in  the  aforesaid  house,  and 
had  made  the  same  their  home. 

Affiant  states  that  from  and  after  the  time  affiant  in  the 
fall  of  eighteen  hundred  and  fifteen,  entered  into  the  em- 
ployment of  the  said  Beaubien,  and  began  to  live  in  the  said 


45 

Beaubien's  family,  the  said  Beaubien  did  not  during  the 
time  affiant  was  in  the  employ  of  the  said  Beaubien  up  to 
and  after  the  year  eighteen  hundred  and  thirty-six,  abandon 
the  said  piece  of  ground  as  his  home,  and  that  he  had  a 
house  thereon,  and  his  home  thereon  on  the  twenty-ninth 
day  of  April,  A.  D.  one  thousand  eight  hundred  and  sixteen, 
and  that  the  said  Beaubien  had  as  affiant  knows  of  his  own 
personal  knowledge,  used  and  cultivated  a  part  of  said  tract 
of  land  in  the  year  eighteen  hundred  and  fifteen,  and  had  in 
that  year  resided  on  the  same. 

Affiant  states  that  between  the  years  eighteen  hundred 
aud  fifteen,  and  the  years  eighteen  hundred  and  nineteen, 
the  said  Beaubien  spent  a  part  of  his  time  at  Milwaukee, 
that  is  near  what  is  now  known  as  Milwaukee,  and  some  of 
his  time  at  the  head  of  Green  Bay,  and  used  to  go  to  Machi- 
naw  for  supplies;  affiant  often  accompanying  him,  and  some- 
times the  wife  of  the  said  Beaubien  accompanied  him  as 
far  as  Milwaukee,  awaiting  until  the  said  Beaubien  was 
through  with  his  circuit  of  trip,  when  she  would  return  with 
him  to  what  is  now  said  City  of  Chicago,  but  that  said  trips 
were  not  made  for  the  purpose  of  abandoning  the  home 
which  the  said  Beaubien  had  established  in  Chicago  on  the 
aforesaid  land,  as  when  absent  the  said  Beaubien  and  wife 
always  in  conversation  in  the  presence  of  affiant,  used  to 
speak  of  the  place  on  the  aforesaid  land  as  their  home. 

Affiant  states  that  at  the  time  he  began  to  work  for  the 
said  Beaubien,  as  aforesaid,  in  the  year  eighteen  hundred 
and  tifteea,  there  was  no  fort  or  building  owned  by  the 
Government  standing  on  the  aforesaid  land,  as  that  term  is 
commonly  understood  in  a  new  country;  that  the  fort  that 
was  said  to  have  been  on  said  land  from  the  year  eighteen 
hundred  and  four  to  August,  or  thereabouts,  in  the  year 
eighteen  hundred  and  twelve,  was  said  to  have  been  aban- 
doned by  the  Government  at  the  latter  date,  and  not  until 
after  being  abandoned  to  have  been  destroyed  by  the  Indians 
of  that  region,  and  the  said  tract  of  land  was  then  totally 
abandoned  by  the  Government,  and  on  the  twenty-ninth  day 


46 

of  April,  A.  D.  eighteen  hundred  and  sixteen,  was  said  to 
have  been  then  totally  abandoned  by  the  United  States  Gov- 
ernment for  a  period  then  of  near  four  years,  and  the  war 
with  the  British  Government  had  then  been  ended  for  the 
space  of  about  two  years,  and  that  it  was  not  then  known 
in  the  region  or  vicinity  of  said  land  that  the  Government 
intended  to  or  ever  would  resume  possession  of  said  land,, 
or  any  portion  thereof,  and,  as  affiant  is  informed,  the  said 
lands  had  relapsed  into  the  condition  of  all  other  public 
lands,  and  were  then  as  susceptible  to  the  attaching  of  pre- 
emptive rights  thereto,  under  pre-emption  legislation  and 
residence  on  said  land,  as  if  the  partial  appropriation  thereof 
from  the  years  eighteen  hundred  and  four  to  the  month  of 
August,  eighteen  hundred  and  twelve,  by  the  United  States 
Government  had  not  existed. 

Affiant  further  states  of  his  own  knowledge  that  about 
the  month  of  July  or  August,  eighteen  hundred  and  six- 
teen, and  after  the  twenty-ninth  day  of  April,  A.  D.  one 
thousand  eight  hundred  and  sixteen,  the  United  States  Gov- 
ernment retook  possession  of  about  four  acres  or  less,  of 
what  after  survey  came  to  be  known  as  a  part  of  the  south- 
west fractional  quarter  of  the  aforesaid  section  of  land,  and 
that  at  said  last  date  there  were  no  surveys  in  that  region, 
and  that  the  said  Government,  on  retaking  possession  of  this 
small  portion  of  the  aforesaid  tract  of  land,  designated  the 
portion  it  intended  to  make  use  of  by  enclosing  the  same 
with  a  fence,  and  that  said  Government  fenced  off  and  re- 
tained for  their  use  a  much  larger  field  on  the  west  of  the 
buildings  and  small  field  aforesaid  they  then  used,  which 
larger  field  was  west  of  what  was  known  as  State  street, 
Chicago,  Illinois,  at  the  time  affiant  left  said  city,  and  which 
larger  field,  west  of  said  State  street,  was  in  the  fall  of 
eighteen  hundred  and  twenty-four  still  enclosed  by  fence, 
and  then  known  as  the  Government  field,  and  which  in  the 
fall  of  said  last  named  year,  with  said  small  field,  was  the 
only  land  at  that  date  in  use  by  the  Government,  or  known 
as  the  Government  soldiers  land. 


47 

Affiant  further  states  that  he  knows  of  his  own  knowledge 
that  in  the  fall  of  eighteen  hundred  and  twenty-four,  and  on 
the  first  day  of  October,  of  that  year,  the  said  John  B.  Beau- 
bien  was  then  in  the  actual  occupancy,  and  then  actually  re- 
siding on  said  tract  of  land,  outside  of  the  said  theretofore 
enclosed  and  appropriated  limits  that  had  been  in  use  by  the 
Government,  and  that  on  this  portion  of  said  tract  of  land 
since,  on  the  twenty-ninth  day  of  April,  A.  D.  one  thousand 
eight  hundred  and  sixteen,  the  said  Beaubien  had  made  for 
that  date,  and  region,  large  expenditures  for  improvements, 
and  which  improvements  were  then  still  standing  on  said 
portion  of  said  tract  of  land,  and  still  were  owned  by  the 
said  Beaubien,  and  that  they  were  popularly  known  as  said 
Beaubien's  private  property,  and  that  they  were  then,  by 
the  custom  and  usage  of  that  region,  as  much  an  article  of 
sale  and  purchase,  and  the  title  of  the  settler  thereto;  as 
much  respected  as  though  the  same  were  his  cow  or  his 
horse ;  and,  as  affiant  is  informed,  the  settlement  law  in 
force  at  that  date  for  the  territory  of  Illinois,  not  only  au- 
thorized the  sale  and  transfer  before  entry  of  such  improve- 
ments, but  also  of  the  guaranteed  pereferential  right  from  the 
Government  of  the  first  and  exclusive  right  to  purchase  the 
land  itself,  which  right,  as  affiant  is  informed  and  believes, 
contained  the  further  promise  of  the  Government ;  that  the 
right  of  entry  and  purchase  should  not  be  predicated  on, 
whether  the  land  of  the  settler  should  ever  be  proclaimed 
for  sale,  and  that  save  and  except  for  a  failure  of  the  settler 
to  enter  his  land  within  the  time  fixed  by  the  settlement  law 
his  right  of  entry  should  not,  as  affiant  is  informed,  be  for- 
feited by  the  Government  or  others. 

Affiant  further  states  that  he  has  no  interest  whatever  in 
who  is  the  owner  of  any  portion  of  the  fractional  quarter 
section  of  land,  first  above  described,  and  that  he  is  not  an 
Indian,  but  a  Frenchman,  and  that  he  has  lived  at  and  near 
Silver  Lake,  Shawnee  County,  Kansas,  for  twenty-six  years, 
last  past ;  that  he  has  attentively  listened  to  the  careful  read- 
ing of  all  of  the  aforesaid  affidavit,  and  fully  understands  its 


48 

contents,  and  that  affiant  is  well  and  extensively  known  in 
the  region  aforesaid. 

his 

JEAN  B.  LATENDRE,   M 

mark. 

Witness  :  DR.  W.  F.  HAZELTON. 

Sworn  and  subscribed  to  before  me,  and  by  me  read  over 
to  affiant  before  signing,  this  twenty-first  day  of  December, 
eighteen  hundred  and  seventy-seven. 

WM.  F.  JOHNSTON, 
£SEAL.]  Notary  Public. 

I  do  solemnly  swear  that  I  have  known  Jean  B.  Latendre, 
(whose  signature  is  attached  above,)  for  fifteen  years,  and 
know  him  to  be  a  respectable  witness  and  citizen  of  Shaw- 
nee  County,  State  of  Kansas. 

W.  F.  JOHNSTON,  Postmaster, 

Silver  Lake,  Shaionee  County,  Kansas. 

W.  F.  Johnston,  who  is  personally  known  to  me,  appeared 
and  was  duly  sworn  to  the  fact  set  forth  in  above  affidavit, 
December  21st,  1877. 
[SEAL.]  W.  F.  HAZELTON,  N.  P. 

I  have  been  personally  acquainted  with  the  above-named 
W.  F.  Johnston  for  twelve  years,  and  know  him  to  be  an 
honorable  gentleman  in  all  things,  but  I  have  no  acquaint- 
ance with  Jean  B.  Latendre. 

THOS.  B.  RYAN,  M.   0. 


AFFIDAVIT  OF  MADORE  B.  BEAUBIEN. 

STATE  OF  KANSAS,       "| 
County  of  Shawnee,  \-ss. 

City  of  Silver  Lake,  ) 

Madore  B.  Beaubien,  being  first  duly  sworn,  makes  oath 
and  says  that  he  resides  at  said  town  of  Silver  Lake;  that  he  is 
past  sixty-eight  years,  of  age,  and  that  he  was  the  second  son  of 


49 

Colonel  John  B.  Beaubien,  otherwise  named  Jean  B.  Beau- 
bien, now  deceased;  and  who  was  an  early  pre-emption  set- 
tler on  the  southwest  fractional  quarter  of  section  ten,  town- 
ship thirty-nine,  north  range  fourteen,  east  of  the  third  prin- 
pal  meridian  in  the  now  City  of  Chicago,  County  of  Cook, 
and  State  of  Illinois. 

Affiant  states  that  his  memory  of  the  matters  hereafter 
stated  runs  back  to  the  spring  of  eighteen  hundred  and  thir- 
teen, and  these  matters  and  things  herein  stated  as  having 
occurred  prior  to  that  date  are  based  on  such  information  as 
affiant,  after  the  spring  of  eighteen  hundred  and  thirteen, 
obtained  from  his  father  and  from  his  stepmother,  Josettie 
Beaubien  and  the  other  people  then  living  in  and  near  the 
aforesaid  fractional  quarter  section  of  land,  and  are  true  ac- 
cording to  such  knowledge  and  the  best  of  said  affiant's  be- 
lief. 

With  this  qualification  affiant  states  that  in  the  year  eigh- 
teen hundred  and  twelve  the  father  of  affiant  purchased  from 
the  rightful  owner  thereof  a  dwelling-house  on  the  aforesaid 
fractional  quarter  section  of  land  that  had  been  built  thereon 
about  the  year  eighteen  hundred  and  four,  and  used  and  oc- 
cupied from  and  after  the  year  eighteen  hundred  and  four, 
and  from  and  after  said  last  date  a  piece  of  ground  on  said 
fractional  quarter  section  of  laud,  and  in  and  about  said  house 
by  the  rightful  owner  and  occupier  of  said  house  had  from 
year  to  year  been  cultivated. 

Affiant  personally  recollects  that  early  in  the  year  eighteen 
hundred  and  thirteen  the  father  of  affiant,  and  with  affiant, 
and  with  the  stepmother  of  affiant,  and  then  the  wife  of  the 
father  of  affiant,  were  all  residing  in  the  said  house  on 
said  tract  of  land,  that,  as  before  stated,  had  been  pur- 
chased by  him  during  the  year  eighteen  hundred  and 
twelve,  and  that  each  year  thereafter  the  said  John  B.  Beau- 
bien occupied  said  house  and  land  a  portion  of  each  year, 
and  at  all  times  from  and  after  that  date  spoke  of  the  same 
as  their  home,  even  when  absent  from  it;  that  in  eighteen 
hundred  and  seventeen,  or  thereabouts,  the  said  John  B. 
4 


50 

Beaubien  purchased  another  house  on  said  tract  of  land  of 
one  Dean,  and  from  and  after  that  date  during  his  yearly 
stays  at  the  now  Chicago,  Illinois,  ceased  to  occupy  and  use 
the  aforesaid  house  that  had  been  built  about  eighteen  hun- 
dred and  four,  and  purchased  by  him  in  eighteen  hundred 
and  twelve;  and  the  said  first  house  was  turned  into  a  stable 
or  barn,  and  from  and  after  eighteen  hundred  and  seventeen 
or  thereabouts  was  so  used. 

Affiant  states  that  when  the  said  John  B.  Beaubien  in 
eighteen  hundred  and  twelve,  purchased  his  said  first  house 
on  said  land,  that  he  was  then  about  to  marry,  and  soon  did 
marry  Jossettie  Lafromboise,  who  had  been  reared  in  that 
locality,  and  whose  relatives  then  resided  there,  and  that 
she  was  then  residing  on  an  adjoining  fractional  quarter 
section  of  land,  and  that  the  said  purchase  was  made  for  the 
his  permanent  and  future  home,  that  the  said  marriage  wa& 
made,  and  the  said  Gen.  John  B.  Beaubien  and  wife  remained 
residents  of  Chicago,  aforesaid,  on  the  aforesaid  land,  until 
after  eighteen  hundred  and  thirty-nine,  on  which  tract  of  land 
there  was  born  unto  them  as  the  fruit  of  said  marriage  a 
very  large  family  of  children. 

The  business  of  the  said  John  B.  Beaubien  did  not  permit 
him  to  be  permanently  located  at  any  one  point  for  a  whole 
year.  He  was  then  an  Indian  trader,  and  was  required  to 
be  some  of  the  time  in  each  year  at  the  now  Chicago,  Illi- 
nois, some  of  the  time  at  the  now  Milwaukee,  Wisconsin, 
and  some  of  the  time  at  the  now  Green  Bay,  "Wisconsin,  all  of 
which  points  at  that  time  arid  for  years  thereafter  were  in  the 
then  Territory  of  Illinois,  but  that  the  said  John  B.  Beaubien 
never  at  any  time  in  his  life  resided  or  did  business  at  Mack- 
inaw, save  and  except  as  he  visited  that  point  to  take  his 
furs,  and  purchase  his  supplies  for  use  at  the  aforesaid  posts 
in  the  then  Territoy  of  Illinois. 

On  these  trips  to  these  posts  in  the  then  territory  of  Illi- 
nois the  wife  and  children  of  the  said  John  B.  Beaubien, 
from  1812  to  1819  or  thereabouts,  usually  accompanied  him, 
going  by  way  of  boat;  and  particularly  was  this  the  case  as 


51 

to  his  trips  to  the  now  Milwaukee  and  Chicago,  as  these 
points  were  quite  near  each  other,  and  by  a  water  route  con- 
nected. These  trips  to  the  north  by  the  said  Beaubien  were, 
however,  for  business  purposes  solely;  and  as  soon  as  that 
business  necessity  ended  the  said  Beaubien  settled  down  and 
remained  permanently  on  the  aforesaid  tract  of  land  in  Chi- 
cago, and  during  absence  on  these  northern  trips  the  said 
John  B.  Beaubien  and  wife  always  used  to  speak  of  the  said 
Chicago  place  as  their  home;  and  at  none  of  said  northern 
posts  during  the  continuance  of  these  trips,  or  the  time  they 
were  being  made,  did  the  said  "John  B.  Beaubien  make  any 
such  purchases  as  the  said  Dean  purchase,  or  the  eighteen 
hundred  and  twelve  purchase  of  improvements  on  the  afore- 
said tract  of  land,  so  far  as  affiant  is  informed;  and  had  such 
purchases  been  made  at  these  northern  posts  affiant  believes 
he  would  have  known  of  them. 

Affiant  states  that  from  and  after  the  time  his  father  pur- 
chased said  house  on  said  tract  of  land  in  the  year  eighteen 
hundred  and  twelve,  that  he  did  not  remove  at  any  time 
thereafter,  in  any  period  of  his  life  from  the  then  Territory 
of  Illinois,  and  that  on  the  fifth  day  of  February,  A.  D.  one 
thousand  eight  hundred  and  thirteen,  the  said  tract  of  land 
was  not  in  the  occupancy  and  use  of  the  United  States  Gov- 
ernment for  any  purpose  whatever,  and  therefore  as  affiant 
is  informed  and  believes  was  not  a  reservation  by  occupancy, 
and  that  at  said  date  no  part  of  said  tract  of  land  had  been 
entered  as  reserved  at  any  Government  land  or  other  office, 
as  affiant  is  informed  and  believes,  that  the  said  tract  of  land 
was  not  then  a  reservation  for  any  purpose  either  by  occu- 
pancy or  entry,  and  that  no  part  of  said  tract  of  land  was  at 
that  date  reserved  from  sale  by  any  act  of  Congress,  nor 
had  any  part  thereof  been  directed  to  be  sold  in  town  lots 
or  out  lots,  and  therefore  that  as  said  affiant  is  informed, 
the  said  tract  of  land  became  and  was  subject  to  the 
attachment  of  pre-emptive  rights  thereto  by  settlement, 
theretofore  made,  or  thereafter  to  be  made  on  said  tract  of 
land,  under  the  provisions  of  the  pre-emption  law  of  the 


52 

above  date,  for  the  then  Illinois  Territory,  with  the  excep- 
tion, that  the  aforesaid  tract  of  land  on  survey  might  be 
found  to  be  a  fractional  quarter  section  of  land,  and  held  to 
be  excluded  for  that  reason  from  the  pre-emption  settle- 
ment, and  that  to  meet  such  a  contingency  and  other  contin- 
gencies, affiant  states  that  an  amendment  to  said  act  was 
passed  and  approved,  April  twenty-ninth,  eighteen  hundred 
and  sixteen^  making  the  said  law  applicable  to  fractional 
quarter  sections  of  land,  and  that  on  the  date  of  the  passage 
of  this  amendment  the  said  tract  of  land  had  not  in  any  way 
been  in  the  occupation  or  use  of  the  Government  for  nearly 
four  years,  either  by  an  agent  in  possession,  nor  did  it  have 
a  building  thereon,  or  a  forl  thereon  of  the  Government, 
nor  had  it  had  for  the  space  of  about  four  years,  and  the 
said  John  B.  Beaubien  was  then  in  the  actual  possession,  of 
said  tract  of  land  with  a  house  thereon,  and  had  had  posses- 
sion thereof  and  cultivated  a  portion  thereof  for  several 
years,  and  at  said  date  the  Government  had  not  been  in 
possession  of  any  part  of  said  tract  of  land  for  a  period  of 
near  four  years,  nor  was  it  known  in  the  vicinity  of  said 
land  at  that  time,  that  the  Government  ever  intended  to 
resume  possession  of  any  portion  of  said  tract  of  land,  nor 
at  said  last  named  date,  so  far  as  affiant  is  informed  and 
believes  had  any  portion  of  said  tract  of  land  been  reserved 
by  any  former  act  of  Congress,  or  directed  to  be  sold  in 
town  lots  or  out  lots. 

Affiant  further  states  that  after  this  tract  had  thus  passed 
in  equity  to  the  said  John  B.  Beaubiein,  under  and  by  vir- 
tue of  the  said  legislation  of  Congress,  giving  him  a  pre- 
emption right  therein,  one  of  the  officers  of  said  Govern- 
ment with  a  company  of  its  troops,  in  the  month  of  July,  or 
thereabouts,  of  the  year  eighteen  hundred  and  sixteen,  took 
possession  of  about  four  acres  thereof,  and  enclosed  the  same 
by  a  fence,  thereby  designating  the  extent  of  the  land  thus 
appropriated,  and  erected  a  Government  building  inside  of 
said  fence,  which  post  so  fenced  and  enclosed  was  not  at  the 
time  known  would  include  any  of  the  land,  which  by  an 


53 

equitable  grant  from  Congress  had  previously  passed  to,  and 
become  vested  in  equity  in  the  said  Beaubien,  as  it  was 
found  when  the  said  tract  came  to  be  first  surveyed  by  the 
Government  of  the  United  States,  which  said  first  survey 
was  not  made  until  about  the  year  eighteen  hundred  and 
twenty-one,  as  affiant  is  informed  and  believes,  and  that,  as 
affiant  is  informed  and  believes,  the  land  in  said  tract  or 
fractional  quarter  section  of  land,  not  in  July,  eighteen  hun- 
dred and  sixteen,  for  the  use  of  the  Government,  taken  pos- 
session of  would  have  remained,  by  the  terms  o;  the  said 
two  pre-emption  acts,  subject  to  pre-emption  settlement  after 
that  date,  had  the  same  not  before  that  date  been  settled  on 
and  been  then  owned  by  the  said  John  B.  Beaubien,  and 
affiant  states  that  on  the  said  part  of  said  tract,  or  fractional 
quarter  section  of  land,  outside  of  the  enclosed  limits  of  said 
fort,  rebuilt  in  eighteen  hundred  and  sixteen,  were  both  the 
houses  and  cultivated  piece  of  ground  purchased  by  said 
Beaubien  in  the  year  eighteen  hundred  and  twelve,  and  the 
house,  that  in  or  about  the  year  eighteen  hundred  and  sev- 
enteen the  said  Beaubien  had  purchased  of  one  Dean,  this 
Dean  house  being  then  comparatively  new,  and  for  that  date 
of  much  value,  and  the  said  part  of  said  tract  of  land  that 
was  outside  of  the  post  limits  had  been,  and  was  the  home 
and  residence  of  the  said  John  B.  Beaubien  at  the  time  said 
tract  of  land  was  first  surveyed,  and  at  the  time  the  survey 
and  plat  thereof  was  tiled  and  approved  in  the  proper  office 
therefor,  and  the  said  Beaubien  was  also  in  the  possession 
and  actual  occupancy  of  the  said  land  on  the  first  day  of 
October,  eighteen  hundred  and  twenty-four,  and  then  had 
valuable  buildings  thereon,  procured  at  his  own  private  ex- 
pense, and  then  regarded  his  private  property,  at  which  lat- 
ter date,  as  affiant  is  informed  and  believes,  the  said  build- 
ings of  the  said  Beaubien,  and  his  said  land  were,  without 
his  knowledge  or  authority  therefor,  reserved  for  the  use  of 
the  General  Government  without  any  compensation  there- 
for being  made  to  him,  the  said  Beaubien,  and  that  from 
and  after  said  last  named  date,  the  said  tract  of  land  re- 


54 

mained  reserved  for  the  use  of  the  Government  until  the 
spring  of  eighteen  hundred  and  thirty-nine,  and  that  a  part 
of  said  tract  of  land  did  not  cease  to  be  such  a  reservation 
until  on  or  about  the  twenty-fifth  day  of  May,  A.  D.  eigh- 
teen hundred  and  seventy-two. 

Affiant  states  that  he  has  read  the  said  acts  of  February 
fifth,  eighteen  hundred  and  thirteen,  and  the  amendment 
thereof,  dated  and  approved  April  twenty-ninth,  eighteen 
hundred  and  sixteen,  and  that  he  is  familiar  with  what  the 
said  John  B.  Beaubien  did  in  compliance  with  the  terms  of 
the  said  acts,  and  he  states  that  at  the  time  of  the  said  ap- 
propriation of  about  four  acres  of  said  tract  or  fractional 
quarter  section  of  land  by  the  Government  of  the  United 
States,  the  said  Beaubien  was  in  no  default  with  any  of  the 
terms  of  either  of  said  acts,  and  was  then  in  the  actual  pos- 
session of  said  tract  of  land;  and  that  when  a  reservation  of 
the  residue  of  said  tract  or  fractional  quarter  section  of  land 
was  made  by  entry  in  the  Land  Office  on  the  first  day  of  Oc- 
tober, A.  D.  eighteen  hundred  and  twenty-four;  that  the 
said  John  B.  Beaabien  was  then  in  no  default  with  any  of 
the  terms  of  either  of  said  acts ;  and  that  on  said  last  date,  as 
before  stated,  the  said  John  B.  Beaubien  was  also  in  the  pos- 
session of  said  tract  of  land  then  residing  thereon. 

Affiant  further  states  that  he  is  advised  and  believes  that 
the  said  reservation,  notwithstanding  the  said  private  rights 
theretofore  and  then  in  said  land  in  favor  of  the  said  John  B. 
Beaubien  operated  to  exclude  the  said  land  from  either  entry 
or  sale  until  it  should  cease  to  be  used  by  the  United  States 
Government,  and  the  reservation  of  the  same  entered  in  the 
Land  Office,  should  be  canceled  and  vacated;  and  that  while 
this  reservation  should  last  the  pre-emption  right  of  the  said 
Beaubien  could  not  in  any  way  be  asserted;  and  that  if  he 
should  attempt  to  assert  it  his  act,  whatever  it  might  be, 
would  be  void;  but  that  nevertheless  his  pre-emption  right 
for  the  period  of  time  the  reservation  would  last  would  con- 
tinue to  exist  in  abeyance  in  the  land  to  revive  upon  the 
reservation  being  vacated. 


55 

Affiant  states  that  he  is  advised,  and  believes,  that  the 
said  reservation  as  to  a  part  of  said  tract  of  land  was  first 
vacated  in  the  spring  of  the  year  eighteen  hundred  and 
thirty-nine,  by  the  issuing  of  an  order  for  the  sale  thereof; 
and  that  the  said  order  was  then  made  by  the  Secretary  of 
"War  that  he,  as  Secretary  of  War,  would  cause  the  same  to 
be  sold,  after  being  subdivided  into  lots  and  blocks,  and  be 
sold  in  single  lots  to  the  highest  private  bidder,  and  not 
otherwise,  which  lots  were  of  about  the  size  of  twenty-two 
feet  front  by  usual  and  ordinary  depth  for  city  lots  to  alleys 
in  the  rear,  and  some  perhaps  a  little  larger;  that  the  man- 
ner and  terms  of  said  order  were  of  themselves  a  prohibi- 
tion to  the  said  John  B.  Beaubien;  that  the  said  tract  would 
not  in  whole  or  in  any  part  be  sold  to  him  as  a  pre-emptor; 
and  that  being  ordered  to  be  sold  by  the  Secretary  of  War, 
the  said  order  was  a  refusal  to  give  the  said  John  B.  Beau- 
bien the  privilege  to  first  prove  and  enter  and  purchase  the 
same,  as  the  law,  as  affiant  is  advised,  required,  for  the 
reason  that  at  that  time  the  said  Secretary  had  no  authority 
or  jurisdiction,  nor  has  he  ever  had,  so  far  as  affiant  is  in- 
formed, to  hear  a.id  determine  pre-emptive  proofs,  or  to 
Issue  and  deliver  pre-emption  certificates  of  purchase  ;  nev- 
ertheless, affiant  states  that  the  said  John  B.  Beaubien  was 
then  ready  and  anxious  and  able  to  make  the  necessary 
proof  of  his  settlement  on  the  aforesaid  tract  of  land,  and  of 
his  compliance  with  the  requirements  of  the  aforesaid  pre- 
emption acts ;  and  that  the  said  John  B.  Beaubien  was  then 
in  the  actual  possession  of  said  tract  of  land,  residing  thereon, 
and  that  the  said  Beaubien  and  his  heirs  have  always  been 
ready  and  anxious  to  make  the  proper  proof,  entry  and  pay- 
ment for  said  land  under  said  law,  and  that  they  are  still 
ready  and  prepared  to  do  this,  but  that  no  hour  or  moment 
has,  that  affiant  is  aware  of,  ever  been  allotted  them  to  make 
this  proof,  entry,  and  payment  since  the  aforesaid  tract  of 
land  was  reserved,  as  aforesaid,  and  while  the  said  pre- 
emption title  of  said  John  B.  Beaubien  was  in  full  force, 
-and  before  he  had  made  any  default. 


56 

Affiant  further  states  that  the  said  early  laws  are,  as  he  is- 
advised,  still  in  full  force  as  to  said  early  settlement,  and 
unrepealed,  and  that  the  time  allotted  by  them  for  pre- 
emptive proof,  entry,  and  payment  of  said  tract  of  land  has 
not  as  yet  expired,  and  that  quite  a  large  tract  of  said  land 
now  claimed  by  the  city  of  Chicago  still  remains  as  an  open 
common,  unsold  and  unconveyed,  with  the  legal  title  still 
in  the  United  States  Government,  and  subject  to  the  trust 
in  favor  of  the  said  Beaubien  and  his  heirs  that  existed  on 
the  days  that  it  was  appropriated  and  reserved,  as  aforesaid,, 
as  affiant  is  informed  and  believes ;  and  that  the  heirs  of  the 
said  John  B.  Beaubien,  nearly  all  of  whom  still  reside  in 
the  city  of  Chicago,  Illinois,  aforesaid,  are  now  ready  and 
willing  and  anxious,  as  they  have  been  at  all  times  hereto- 
fore,  to  tender  proof  of  compliance  with  said  law  by  their 
father,  and  to  offer  and  pay  the  sum  of  one  dollar  and 
twenty-five  cents  per  acre,  fixed  by  a  solemn  act  of  Con- 
gress as  the  price  to  be  paid  therefor,  to  induce  the  said 
John  B.  Beaubien  to  remain  on  said  tract  of  land  and  make 
large  expenditures  thereon  for  buildings,  while  the  same 
was  unreserved  and  unappropriated,  and  which  in  fact  had 
that  effect  and  operation. 

Affiant  further  states  that  in  addition  to  the  aforesaid  act 
of  estoppel  as  against  the  United  States  Government,  to 
make  good  their  solemn  and  written  promise  to  convey  to 
the  said  Beaubien  and  his  heirs  the  said  tract  of  land,  or 
any  remaining  part  thereof  at  the  price  aforesaid,  before 
they  would  permit  it  to  be  sold,  granted  or  conveyed  to  others, 
that  the  said  United  States  Government,  in  and  by  the  said 
pioneer  residence  of  the  said  John  B.  Beaubien,  received  a 
great  reward  and  benefit  from  the  said  John  B.  Beaubien  in 
this.  That  he  came  to  said  locality  when  the  United  States 
was  unable  or  failing  to  maintain  a  suitable  force  in  that 
locality  to  cope  with  the  then  powerful  tribe  of  Pottawatamie 
Indians,  then  inhabiting  the  country  in  and  about  the  now 
City  of  Chicago,  and  when  the  garrison  of  troops  there  had 
all  been  murdered,  and  the  white  settlers  had  been  or  were 


57 

compelled  to  flee  for  their  lives,  and  remain  absent  for  the 
space  of  about  four  years.  This  tribe  of  Indians  at  this 
time  were  wholly  under  the  control  of  the  British  Govern- 
ment, and  during  our  then  war  with  that  power  their  fast 
allies,  and  such  agents  and  persons,  as  the  United  States 
Government  had  sent  in  among  them,  to  prevent  and  break 
up  this  alliance  had  been  unavailing,  arid  it  was  necessary 
and  desirable  to  the  United  States  Government  for  some 
one  to  go  and  be  with  them  that  could  and  would  materially 
aid  in  this  task.  The  said  John  B.  Beaubien  being  an 
American  citizen  by  birth  and  education,  and  then  and  at 
all  other  times  truly  and  thoroughly  loyal  to  the  United 
States  Government,  and  having  been  born  and  reared  in  the 
now  City  of  Detroit,  Michigan,  and  surrounded  with  Indians 
from  the  time  of  his  birth,  and  fully  understanding  their 
character,  and  in  a  large  measure  enjoying  their  confidence, 
did  at  this  critical  time  marry  Josettie  Lafromboise,  then 
one  of  the  said  tribe  of  Indians  necessary  to  be  conciliated, 
and  through  her  and  her  family,  who  were  very  influential 
members  of  said  tribe  of  Indians,  and  then  somewhat  more 
enlightened  than  the  generality  of  the  other  members  of 
said  tribe  of  Indians,  the  said  Beaubien  did  all  in  his  power 
without  any  fee  or  reward,  to  bring  about  this  reconciliation 
of  these  Indians  to  the  United  States  Government,  and  in 
this  he  was  aided  by  his  wife  the  mother  of  the  larger  part 
of  the  now  Beaubien  children  and  heirs,  claiming  title  to  the 
aforesaid  tract  of  land,  the  desired  result  was  secured,  and 
the  said  Indians  after  that  war  became  the  most  loyal  to  the 
United  States  Government,  and  instead  of  being  a  great 
menance  to  pioneer  settlement,  became  a  strong  police  force 
to  aid  in.  their  protection,  and  in  the  Indian  war  that  occurred 
in  that  region,  or  west  of  there,  in  the  year  eighteen  hun- 
dred and  thirty-two,  these  Indians  rendered  meritorious 
service  in  aiding  the  United  States  Government  to  suppress 
it,  and  from  and  since  that  date  it  is  believed  by  affiant  that 
they  have  been  truly  loyal,  and  well  disposed  to  the  United 
States  Government,  and  all  its  citizens  and  subjects. 


58 

Affiant  further  states  that  not  desiring  to  rest  his  father's 
loyalty  and  the  value  of  his  said  services  on  the  testimony 
of  a  son,  he  takes  occasion  and  does  refer,  for  further  proof 
of  these  qualities  in  affiant's  father  to  the  resolutions  adopted 
at  an  indignation  meeting  held  by  the  citizens  of  Chicago, 
Illinois,  on  the  —  day  of  June,  1839,  on  the  occasion  of  the 
Government  of  the  United  States,  through  an  alleged  agent 
of  the  then  Secretary  of  War,  causing  the  said  land  so 
promised  as  aforesaid  many  years  theretofore  by  Congress  to 
the  said  John  B.  Beaubien  by  a  solemn  law  to  then  in  re- 
pudiation of  said  law  and  promise  to  be  subdivided  as  afore- 
said into  little  lots  of  about  twenty-two  feet  front,  and  to  be 
sold  to  the  highest  bidder,  and  the  proceeds  placed  in  the 
United  States  Treasury,  under  which,  with  other  parts  of  the 
said  land  of  the  said  John  B.  Beaubien  as  the  said  alleged 
agent  of  the  then  Secretary  of  War,  had  caused  them  to  be 
sold  away  from  the  said  John  B.  Beaubien  the  very  house 
that  then  in  his  old  age  he  was  inhabiting,  and  in  which  he 
had  resided  in  since  Illinois  was  a  Territory,  and  which 
house  had  been  procured  at  great  expense  to  the  said  Beau- 
bien, and  in  which  a  large  family  of  children  had  been  born 
unto  him  and  partly  reared;  and  in  and  around  which  house 
on  the  said  land  so  sold  and  conveyed  were  also  the  graves 
of  the  departed  children  of  the  said  Beaubien. 

Affiant  states  that  the  resolutions  of  said  meeting,  which 
were  printed  in  all  the  city  papers  of  Chicago  aforesaid  at 
the  time,  and  which  are  still  in  existence,  did  not  overdraw 
the  picture  as  to  what  the  said  Beaubien  had  done  for  said 
locality  and  the  United  States  Government;  but  affiant 
knows  as  a  fact  that  they  left  many  things  in  the  favor  of  the 
said  Beaubien  unsaid  which  might  have  been  said. 

Affiant  further  states  in  explanation  of  the  letters  of  Dr. 
Wolcott,  written  from  Chicago  to  the  Department  at  Wash- 
ington, D.  C.,  advising  a  reservation  to  be  made  of  the  afore- 
said fractional  quarter  section  of  land  for  the  uses  of  the  Gov- 
ernment, and  that  a  larger  tract  than  the  whole  of  said  frac- 
tional quarter  section  of  land  was  then  under  fence  and  in  the 


59 


use  of  the  Government,  or  language  to  that  effect;  that  the 
larger  part  of  the  land  thus  referred  to  was  outside  of  the  said 
fractional  quarter  section  of  land,  and  in  section  nine  in  the 
aforesaid  township,  and  that  in  the  said  Beaubien  fractional 
quarter  section  there  was  then  only  about  four  acres  inclosed 
and  in  the  use  of  the  Government,  or  that  at  any  time  since 
the  retaking  possession  thereof  in  1816,  had  been  in  the  use 
of  the  Government,  and  that  the  part  of  the  said  Beaubien 
fractional  quarter  section  then  in  use  or  inclosed  by  the  Gov- 
ernment is  correctly  represented  by  the  western  inclosure 
shown  in  a  picture  of  Chicago  in  the  year  eighteen  hundred 
and  twenty,  which  picture  was  shortly  since  shown  affiant  by 
William  H.  Standish,  Esq.,  of  Chicago,  Illinois,  with  the  word 
•"Childs"  printed  on  it,  while  the  eastern  enclosure  shown 
on  said  picture  shows  houses  and  buildings  then  owned  by 
the  said  John  B.  Beaubien,  and  to  show  the  field  above 
referred  to  in  section  nine  of  said  township  that  had  been 
fenced  in  and  used  by  the  Government  to  raise  vegetables, 
&c.,  for  the  soldiers  at  the  post.  The  said  affiant  has  caused 
the  following  map  to  be  drawn : 


L  a  k  eMi  o  h  i  g  a  n . 

EXPLANATIONS. — No.  1  \sn4vt.  and  enclosure  on  the  Beaubien  tract  of  land. 
The  other  enclosure  ia  wear  of  the  Beaubiea  tract  of  land. 


60 

Affiant  states  that  he  was  residing  at  the  city  of  Chicago 
aforesaid  when  that  part  of  the  reservation  by  occupancy 
aforesaid  that  had  been  made  in  July,  1816r  or  thereabouts, 
and  after  survey  was  found  to  be  in  section  nine  aforesaid, 
was  vacated  and  ceased  to  be  used  by  the  soldiers  at  Fort 
Dearborn,  and  until  after  the  sale  and  disposition  thereof 
was  made  and  affiant  states  that  the  part  of  said  reservation 
in  existence  by  occupancy,  on  the  third  day  of  March,  eigh- 
teen hundred  and  nineteen,  situated  in  said  section  nine  upon 
becoming  after  that  date  vacated,  was  permitted  to  and  did 
relapse  back  into  the  condition  of  public  lands  that  had 
never  been  appropriated  or  reserved,  and  was  sold  and  dis- 
posed of  in  the  same  manner  as  the  other  public  lands  in 
and  about  Chicago  aforesaid  that  had  never  been  sold  or 
appropriated  prior  to  the  grant  to  the  State  of  Illinois  for 
canal  purposes,  and  said  field  was  not  sub-divided,  sold 
or  disposed  of  by  the  Secretary  of  War,  notwithstanding 
that  the  said  lands  were  sold  and  disposed  of  between  the 
years  eighteen  hundred  and  nineteen  and  eighteen  hun- 
dred and  fifty-seven  by  grant  of  public  lands  to  the  State  of 
Illinois. 

Affiant  further  states  that  at  the  time  a  subdivision  of  the 
aforesaid  tract  of  land  known  as  Fort  Dearborn  Addition  to 
Chicago,  Illinois,  was  made,  platted,  and  filed  of  record,  and 
at  the  time  all  the  Fort  Dearborn  sale  of  lots  out  of  said 
tract,  in  the  year  eighteen  hundred  and  thirty-nine,  was 
made,  and  at  the  time  the  City  of  Chicago  took  possession 
of  a  part  of  said  tract  of  land  that  at  said  sale  was  not  sold, 
the  said  John  B.  Beaubien  was  in  the  actual  possession  of 
said  tract  of  land,  residing  thereon  with  his  family,  and  the 
said  City  of  Chicago,  and  all  parties  concerned,  had  full  no- 
tice of  all  his  rights  in  said  tract  of  land,  and  as  affiant  is 
informed  and  believes,  that  before  said  alleged  sale,  and 
while  it  was  progressing,  they  were  publicly  notified  by  one 
of  the  then  able  and  noted  lawyers  of  Chicago  that  said  sale 
would  be  invalid  and  convey  no  title  to  a  purchaser  thereat. 

Affiant  further  states  that  the  said  John  B.  Beaubien  was 


61 

in  the  actual  possession  of  said  fractional  quarter  section  of 
land  on  the  twenty-ninth  day  of  May,  A.  D.  eighteen  hun- 
dred and  thirty,  and  that  he  cultivated  a,  portion  of  said  tract 
of  land  in  the  year  eighteen  hundred  and  twenty-nine. 

Affiant  further  states  that  the  said  John  B.  Beauhien 
was  in  the  actual  possession  of  said  fractional  quarter  sec- 
tion of  land  on  the  nineteenth  day  of  June,  A.  D.  eighteen 
hundred  and  thirty-four,  and  that  he  cultivated  a  portion 
thereof  in  the  year  eighteen  hundred  and  thirty-three. 

Affiant  further  states  that  that  part  of  the  aforesaid  frac- 
tional quarter  section  of  land  now  claimed  by  the  City  of 
Chicago,  and  that  other  part  known  as  the  railroad  grounds, 
were  neither  to  any  extent  in  the  occupancy  and  use  of  the 
United  States  Government,  on  and  prior  to  the  first  day  of 
October,  A.  D.  eighteen  hundred  and  twenty-four,  for  any 
purpose  whatever,  and  as  before  stated  as  affiant  is  informed 
no  part  of  said  parts  of  said  fractional  quarter  section  of  land 
were,  until  October  first,  eighteen  hundred  and  twenty-four, 
reserved  in  any  way  by  the  Government  of  the  United  States, 
and  further  affiant  saith  not. 

MADORE  B.  BEAUBIEK 

Sworn  and  subscribed  to  before  me  the  28th  day  of  Janu- 
ary, A.  D.  eighteen  hundred  and  seventy-eight. 

JOSEPH  B.  OLIVER, 
[SEAL.]  Notary  Public. 

WASHINGTON,  D.  C.,  February  6,  1878. 
I  have  been  personally  and  well  acquainted  with  Madore 
B.  Beaubien  during  the  last  past  twelve  years,  and  I  regard 
him  as  a  most  upright,  honest  and  truthful  man. 

THOS.  RYAN,  M.  C., 

3d  Kansas. 


62 
AFFIDAVIT  OF  WILLIS  SCOTT. 

STATE  OF  ILLINOIS,  ^ 
County  of  Cook,      \ss. 
City  of  Chicago.  J 

"Willis  Scott,  being  first  duly  sworn,  makes  oath  and  says 
that  he  now  resides  in  said  city  at  the  northeast  corner  of 
Green  and  Washington  streets;  and  that  he  came  to  said 
Chicago  to  reside  in  the  year  eighteen  hundred  and  twenty- 
six;  and  that  since  that  date  he  has  resided  at  said  Chicago, 
and  in  northeastern  Illinois,  contiguous  to  said  Chicago. 

Affiant  states  that  when  he  came  to  Chicago  aforesaid  to 
reside  in  the  year  eighteen  hundred  and  twenty-six,  and 
during  each  year  thereafter  prior  to  the  year  eighteen  hun- 
dred and  thirty,  as  well  as  after  the  year  eighteen  hundred 
and  thirty,  it  was  the  custom  ot  the  settlers  to  select  a  piece 
of  government  laud  and  settle  down  on  it  and  improve  it, 
and  where  the  land  had  not  heen  surveyed  so  as  to  mark 
the  lines  of  quarter  sections  and  of  fractional  sections,  the 
settlers  on  the  prairie  used  to  plow  a  furrow  to  mark  their 
boundaries,  and  in  the  timber  they  used  to  mark  and  blaze 
their  timber,  and  what  would  be  found  inside  of  these  lines, 
was  understood  to  be  the  settlers  lands,  commonly  called 
his  settlement  claim. 

These  titles  by  the  settlers  were  regarded  as  sacred  as  the 
land  and  home  of  any  man  now  who  has  his  deed,  and  the 
settlers  evinced  the  same  interest  in  building  on  and  im- 
provingtheir  claimsas  though  they  then  had  their  patent  from 
the  Government,  as  it  was  understood  that  after  survey,  and 
before  the  time  for  public  sale  b}^  the  Government,  the  set- 
tler would  have  the  first  and  best  right  to  enter  at  the  Gov- 
ernment Land  Office  and  buy  his  claim  or  tract  to  the  extent 
of  one  quarter  section  of  one  hundred  and  sixty  acres<  as 
the  boundaries  should  be  fixed  by  survey  and  made  to  in- 
include  his  improvements  and  buildings;  and  prior  to  this 
time  of  such  entry  and  purchase  at  the  Land  Office  these 
settler  or  pre-emption  rights  were  sold  and  exchanged,  and 


63 

were  regarded  as  much  as  a  sacred  right  and  the  private 
property  of  the  settlers  as  though  the  same  were  his  horse 
or  his  cow. 

Affiant,  however,  is  not  aware  that  any  of  these  claims  in 
and  about  Chicago  aforesaid  were  entered  at  any  Govern- 
ment Land  Office  until  after  the  year  eighteen  hundred  and 
thirty,  and  thinks  that  they  were  not  so  entered,  as  it  was 
then  understood  that  the  settler  would  have  until  the  time 
his  tract  would  be  proclaimed  for  sale  in  which  to  enter  and 
purchase  his  land  as  a  pre-emption  settler ;  and  so  far  as 
affiant  is  informed  and  believes  none  of  the  lands  in  and 
about  Chicago  of  the  General  Government  were  proclaimed 
for  general  sale  until  about  the  year  eighteen  hundred  and 
thirty-five,  when  the  Chicago  Land  Office  was  first  estab- 
lished, and  then  it  was  that  many  of  the  old  settlers  first  en- 
tered their  claims  and  obtained  their  Land  Office  certificates. 
These  claims  sometimes  used  to  sell  before  entry  for  quite 
large  sums  of  money;  many  times  more  than  the  Govern- 
ment price. 

WILLIS  SCOTT. 

Sworn  and  subscribed  to  before  me,  this  twelfth  day  of 
January,  A.  D.  1878,  at  the  city  and  county  aforesaid. 

C.  R.  MATSON, 
[SEAL.]  Notary  Public. 

STATE  OF  ILLINOIS,          ) 

Von 

Cook  County,  City  of  Chicago.  J 

Mary  Clyborne  being  first  duly  sworn,  makes  oath  and 
says  that  she  is  the  widow  of  the  late  Archibald  Clyborne, 
of  the_  city  of  Chicago  aforesaid,  now  deceased.  That  she 
was  the  daughter  of  James  Galloway,  formerly  of  Ohio,  near 
Sandusky.  That  in  the  year  eighteen  hundred  and  twenty- 
four  the  father  of  affiant  left  his  said  home  in  Ohio  near 
Sandusky  and  came  out  to  Illinois,  and  returned  to  his  home 
in  Ohio  in  May,  eighteen  hundred  and  twenty-five,  and  on 
his  return  reported  to  his  family  that  he  had  bought  out  a 


64 

settler's  right  in  Illinois,  near  what  is  now  known  as  Mar- 
sailles,  Illinois,  a  town  about  eight  miles  from  what  is  now 
Ottawa,  Illinois. 

In  the  year  eighteen  hundred  and  twenty-six  affiant's 
father  removed  his  family,  including  affiant,  from  Ohio,  and 
wintered  over  that  winter  in  Chicago,  Illinois,  and  arrived 
the  next  spring  at  the  claim  he  had  purchased  on  his  trip 
three  years  before,  and  from  that  time  until  in  the  year  eigh- 
teen hundred  and  twenty-nine,  affiant  lived  on  the  land  her 
father  had  purchased  in  eighteen  hundred  and  twenty-four 
or  eighteen  hundred  and  twenty-five  as  aforesaid,  the  claim 
or  right  as  affiant  understood,  being  a  legal  right  in  the  land 
given  by  law,  to  hold  and  control  it  until  it  would  be  sur- 
veyed and  come  into  the  market  by  the  Government,  when 
it  was  stated  and  understood  the  settler  within  this  time 
would  have  the  right  to  enter  his  land  at  the  land  office 
and  purchase  it  at  one  dollar  and  twenty-five  cents  per  acre. 
These  were  the  only  titles  then  known  in  any  part  of  that 
region  of  country ;  they  were  bought  and  sold  among  the 
settlers,  and  were  regarded  as  the  private  property  of  the 
first  settler,  or  of  those  who  had  purchased  from  him,  and 
were  deemed  as  sacred  as  their  horses  or  their  cows,  and  the 
most  of  these  settlements  were  stated  to  be  new. 

In  the  year  eighteen  hundred  and  twenty-nine,  when  affi- 
ant married  and  removed  to  Chicago  aforesaid,  there  had  been 
no  entry  at  the  land  office  of  the  United  States  by  the  set- 
tlers of  that  region,  nor  by  said  affiant's  father. 

Affiant  however  learned  from  her  father  that  after  his 
removal  to  Chicago,  aforesaid,  he  entered  and  purchased 
his  claim  of  the  Government  as  a  pre-emption  settler,  but 
whether  he  made  his  entry  and  proof  under  a  law  passed  in 
eighteen  hundred  and  thirty,  or  a  later  law,  or  under  a  law 
passed  prior  to  the  year  eighteen  hundred  and  thirty,  affiant 
does  not  know. 

Affiant  now  resides  at  number  six  hundred  and  fifty-two 
Elstern  avenue  in  Chicago,  aforesaid. 

MARY  CLYBOURN  "M 

mark 


65 

Sworn  and  subscribed  to  before  me  this  24th  day  of  Jan- 
uary, A.  D.  eighteen  hundred  and  seventy-eight. 

HORATIO  HILL, 
[SEAL]  Notary  Public, 

From  January  5,  1875,  to  January  5,  1879. 

The  words  "the  next  spring,"  and  "on  his  trip  ten  years 
before"  on  first  page,  and  the  words  "of"  and  "were"  on 
second  page  interlined  before  signing. 

MARY  CLYBOURN. 
Attest : 

HORATIO  HILL, 
[SEAL.]  Notary  Public. 


STATE  OF  ILLINOIS,  \ 
Cook  County,       /  ss' 

John  Bates,  being  first  duly  sworn,  makes  oath  and  says, 
that  he  now  resides  in  the  aforesaid  city,  at  74  Van  Buren 
street,  and  that  he  has  resided  in  said  city  since  the  year 
eighteen  hundred  and  thirty-two;  and  that  from  that  time 
to  this  he  has  been  acquainted  with  the  condition  of  the  so- 
called  Lake  Front  in  said  city,  in  the  southwest  fractional 
quarter  of  section  ten,  town  thirty-nine  north,  of  range  four- 
teen east  of  the  third  principal  meridian,  and  between  Ran- 
dolph and  Madison  streets,  and  that  he  verily  believes  that 
said  city  has  received  more  revenue  for  its  use  than  it  ever 
expended  thereon,  aside  from  the  use  it  has  had  of  it  as  a 
park. 

JOHN  BATES. 

Sworn  and  subscribed  to  before  me,  this  5th  day  of  Feb- 
ruary, A.  D.  1874. 

D.  F.  FLANNERY, 
[SEAL.]  Notary  Public. 


We  have  an  affidavit  of  JameVApplpton,  of  ^hicaafo,  who 
has  resided  there\mce  1842,  to  thVsame  effect  asSj^e  above, 


and  can  pile  this/£iHs§  of  affidavits  racHqitain 
5 


Hon.  J.  A.  WILLIAMSON, 

Commissioner  of  the  General  Land  Office, 

Washington,  D.  C. 

DEAR  SIR:  Assuming  that  the  proclamation  for  the  public 
sales  of  public  lands  that  took  place  in  Chicago,  Illinois,  in 
June,  1835,  did  not  include  the  southwest  fractional  quarter 
of  section  number  ten,  town  thirty-nine  north,  of  range  four- 
teen east,  of  the  third  principal  meredian,  in  the  now  City  of 
Chicago,  County  of  Cook,  and  State  of  Illinois,  as  was  deci- 
ded by  the  court  to  be  the  case,  has  this  tract  ever  yet  been 
proclaimed  for  public  sale.  If  so,  when  ?  State  what  the 
showing  of  the  records  of  your  Department  are  on  this  point. 
Yours,  respectfully, 

W.  H.  STANDISH. 
MARCH  6,  1878. 

[No.  24,638.] 
DEPARTMENT  OF  THE  INTERIOR, 

GENERAL  LAND  OFFICE, 
WASHINGTON,  D.  C.,  March  7th,  1878. 
W.  H.  STANDISH,  ESQ., 

Washington,  D.  C. 

SIR  :  Your  letter  of  the  6th  instant,  asking  if  the  south- 
west fractional  quarter  section  ten,  township  thirty-nine 
north,  range  fourteen  east,  of  third  principal  meridian,  Illi- 
nois, was  ever  proclaimed,  has  been  received. 

In  reply  I  have  to  state  that  it  appears  from  a  letter  of 
this  office,  to  Hon.  J.  C.  Calhoun,  of  the  1st  October;  1824,  - 
that  fractional  section  ten,  said  town,  and  range,  was  re- 
served for  military  purposes.  The  tract  however  does  not 
appear  to  have  been  expressly  excepted  in  the  proclamation 
of  February  12th,  1835,  embracing  said  township,  which  was 
offered  June  15th,  1835.  No  proclamation  embracing  said 
township  subsequent  to  the  above  appears  on  the  tract  book 
of  this  office. 

Very  respectfully, 

J.  A.  WILLIAMSON, 

Commissioner. 


The  court  in  13th  Peters,  498  case  says :  "  But  we  go  fur- 
ther and  say  thatVheresoever  a  tract  of  land  shall  have  once 
been  legally  appropriated  to  any  purpose,  from  that  mo- 
ment the  land  thus  appropriated  becomes  severed  from 
the  mass  of  publicyands,  and  phat  no  subsequent  law  or 
proclamation  or  sale\  would 
to  operate  upon  it,  although 
it."  Argument  then  Xollows 
elusion  that  this  tract 
1834  law,  or  the  Februar 


onstrued  to  embrace  it,  or 
reservation  were  made  of 
illustrate  this,  with  a  con- 
as  neither  included  in  the 
1835,  proclamation  for  sale, 


while  in  the  case  in  whi 
teenth  page  of  this  brief, 
raeut,  this  point  was  expres 
it  had  not,  in  1835,  been  in 
and  the  receiver  to  sell,  being 
This  tract  not  having  been 
it  has  never  been  proclaimed 
pre-emption  entry  by  Beaub 
not  expired ;  and  they  still  r 
and  prepared,  and  now  offer 


recoi  d  is  given  on  the  thir- 

n  Beaubien  and  the  Govern- 

decided  as  to  this  tract,  that 

e  jurisdiction  of  the  register 

en  reserved. 

purchased  in  1835,  nor  since, 
therefore  the  time  for  the 
his  representatives  has 
Illinois,  and  are  ready 
and  purchase  the  land 


described  in  these  bills  in  the  House\and  the  Senate. 


' 


"«i> 


r  f  > 


